The trust he established 20 years ago is out of date since much of the trust property has been sold off, transferred or changed over time. Now he has asked me to assist with either drafting a new trust or updating the old one. I am a licensed attorney myself but with limited experience dealing with trusts. Just looking for some general guidelines.
The beneficiaries would be my sister and me. I'm thinking my father would be named as the trustee and maybe both my sister and I would be succeeding co-trustees upon his death. I don't know if CA has a merger doctrine or if creditors would be able to come after trust assets if the beneficiaries are named as the trustees.
Most of the trust property would be stocks and bonds.
The old trust may still work, as long as the current assets are transferred to it--this will avoid probate. However, if there are a lot of changes like trustees and beneficiaries, you can keep the old trust name/date but "restate" it--it's an amendment that completely replaces the old trust.
For creditors, your father's can make claims against the trust, though they only have one year to do so after his death, and if creditors of you and your sister are a concern, I'd recommend keeping your distributions in trust and have a spendthrift provision. Money inside the trust is safe from the beneficiaries' creditors.
I've found the CEB (Continuing Education of the Bar) books on trusts and wills to be very helpful, and I'd recommend new powers of attorney for property and health care, since these have likely changed a lot in 20 years.
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Medicaid / Medicare Attorney
As a licensed attorney you know the rules regarding practicing in areas of the law in which you lack competency or proficiency. You should either take some more CLE on the topic or associate with an attorney who has the requisite skill and knowledge.
Attorney Johnson provides some good information, but Attorney Davis is correct. God-forbid, if you screw this up, your sister will likely have something to say about it and all heck may break loose in your family and, potentially, with your state bar. Save yourself the pain by having your father retain an experienced estate planning lawyer. Good luck to you.
This information is presented as a public service. It should not be construed to be formal legal advice nor considered to be the formation of a lawyer/client relationship. I am licensed in Connecticut and New York and my answers are based upon the law in those jurisdictions. My answer to any specific question would likely be different if I were to review a client's file and have the opportunity to interview the client. Accordingly, I strongly urge you to retain an attorney in your jurisdiction with respect to any legal matter.
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