This post contains Articles Seven of a sample living trust agreement. My clients have asked me the same question frequently. To answer these questions, I dedicated BoomX Show episodes to answering these questions. I video taped the episode with my iPhone in the studio. These short videos are meant to liven up the tutorial with a BoomX feel to it. But, I admit, they are also far from professionally produced. The text of the sample Article is displayed below.
Our Trustee shall administer the deceased Grantor’s remaining trust property as provided in this Article.
This Section applies if the surviving Grantor is a disabled person (as defined in United States Code Title 42, Section 1382c(a)(3), or under Washington law related to means-based government programs), or is eligible to receive or is receiving assistance (as defined in United States Code Title 42, Section 1396d(a), or under Washington law related to means-based government programs) or other benefits under a means-based government program, such as Medicaid or Supplemental Security Income.
If the surviving Grantor meets the criteria set forth above, our Trustee shall distribute the deceased Grantor’s remaining trust property to the Personal Representative of the deceased Grantor’s estate for administration and distribution under the terms of the deceased Grantor’s Will.
But if the surviving Grantor does not meet the criteria set forth above, our Trustee shall administer the deceased Grantor’s remaining trust property as otherwise provided in this Article.
If Section 1.01 does not apply, our Trustee shall allocate all of the deceased Grantor’s remaining trust property to the Survivor’s Trust, and shall administer the property as provided herein.
This section causes some confusion. I taped a BoomX segment on Disclaimer. Hope it helps.
The surviving Grantor, his or her fiduciary, or his or her agent serving under a power of attorney may disclaim any portion of any interest in or power over property passing from the deceased Grantor to or for the surviving Grantor’s benefit under this instrument. If the surviving Grantor disclaims any property that would otherwise be allocated to the Survivor’s Trust, our Trustee shall allocate the disclaimed property to the Non-Marital Share. Our Trustee shall administer the Non-Marital Share as provided herein.
If the surviving Grantor disclaims his or her interest in any portion of the Non-Marital Share, our Trustee shall dispose of the disclaimed interest as though the surviving Grantor had predeceased the deceased Grantor.
Our Trustee may waive any allocation to the Marital and Non-Marital Shares and administer all of the trust assets under the provisions of the Survivor’s Trust if:
the combined value of the deceased and surviving Grantors’ assets is less than the exemption equivalent for the deceased Grantor allowed by the Internal Revenue Service; and
all of the then-living current and remainder beneficiaries entitled to the assets of any trusts that would otherwise be created from the Marital Share, Non-Marital Share, or both agree to waive any allocation to those shares or trusts or both in writing.
If any of the beneficiaries is a minor, the minor’s parent or guardian may waive the allocation on behalf of the minor in writing.