I want to name our joint revocable trust simply: for example “Lastname Trust” but my attorney tells me that this may spell trouble down the line as people will not know if it is revocable or irrevocable.
My position is that those who need to know will be getting the pertinent pages of the trust anyway and the trust structure will be evident. Should I relent and include the word “revocable” in the name of the trust?
Elder Law Attorney
Go for it! You could call it peanut butter and jelly trust if you want... sure there may be some grinding in the gears, but the name of the trust is UP TO YOU!
This is not legal advice. I am not your lawyer. You are not my client. You cannot rely on my response to your question. My response to your question is probably worth exactly what you paid for it. You don't get to sue me for anything. If you'd like to sue me, well you have to hire me first.
First of all, congratulations! It is great that you are actively choosing how to handle your estate now, than later. As for you specific question, I agree with Attorney Carrier; your trust can be named any way you wish. The transparency of what type of trust agreement it is will be less, but, as you say, anyone receiving a copy of the trust will be able to read the pertinent pages to determine that in any case. The only caveat is to ensure that those "pertinent" parts are described fully and accurately; if not, then the trust may fail to accomplish what you want it to do. Your attorney is likely trying to err on the side of caution just in case the trust fails to do just that. If you are still bent on having it way, then remember you pay to retain your attorney's counsel but do not have to follow it. Good luck!
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Estate Planning Attorney
It is awkward for attorneys to give you advice when you are currently represented by an attorney.
Most trusts that I create for my clients do not use the word revocable in the title and the language in the trust controls what type of trust that is created.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
Wills and Living Wills Lawyer
I agree with my colleagues. Those attorneys were probably not estate attorneys.
It is important that you understand I am not your attorney and you are not my client. Legal advice requires knowledge of pertinent facts, which cannot adequately be communicated in this manner. I am licensed in Florida and New York only so advice in any other jurisdiction is strictly general advice and should be confirmed with an attorney licensed in that jurisdiction.
Estate Planning Attorney
I've had a Florida Department of Revenue Documentary Stamp Tax Auditor tell me that her rule of thumb is to presume that Florida Documentary Stamp Taxes are not imposed on real estate record transfers to revocable trusts or their trustees, but are imposed on transfers to irrevocable trusts or their trustees. If you are dealing with a revocable trust, and you will be recording deeds in Florida, I'd therefore vote for use of the word "revocable" in the name of the trust. The audit request letters and any follow up in person meeting with the FDOR required in the event of an audit or review are a hassle. Why not try to avoid that up front? Also, if you ever have to finance or refinance any Florida real property related to the trust, the word "revocable" in the trust name may also help increase the lender's comfort level from the start, and speed up the process. Beyond those considerations, we are talking personal and professional preferences versus legal effect of the name chosen.
Estate Planning Attorney
I also agree with the attorneys answering your question. You can choose any name for your trust. The operative terms will be in the body of the trust and not the title. In order for a trust to be irrevocable, it must contain specific language (not just a title). Additionally, the statutes in Florida state that a trust is deemed revocable, unless the trust specifically states it is an irrevocable trust. Please see 736.0602 Revocation or amendment of revocable trust.—
(1) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before the effective date of this code
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