May 2010 Archives

Ohio's Trust Code Can Cause you Problems!

     Do you have a Trust Agreement? Many people do for lots of different reasons: probate avoidance, estate and income tax savings and to keep assets in the family bloodline. Trust Agreements have also provided privacy from nosy friends, relatives, or even a nosy Trust beneficiary! However, the Ohio Trust Code, effective January 1, 2007, created a variety of new rights and responsibilities for trustees and beneficiaries that may interfere with that privacy. Be careful-it applies to both new trusts and to trusts created years ago.     For example, lots of people have a trust that provides for the surviving spouse after one spouse dies. While the surviving spouse is alive, he or she can decide how to invest the funds and can take money as needed from the trust while keeping his or her Trust business private. But the Trust Code creates a new obligation for the surviving spouse. In most cases, he or she will have to provide financial accountings to the other beneficiaries (usually your kids). In other words, you'll have to tell your children how you are investing and how you are spending the trust funds. This disclosure may not cause a problem. However, it could cause a horrible family relationship with your kids. You have to tell them everything you're doing with your money! What if they think you are making investment mistakes or that you are spending too much of "their inheritance?" Giving them financial information about everything you do in the Trust is an open invitation for the kids to be nosy.     Another problem is that some parents don't treat their children exactly the same at death. To avoid issues, the parents keep this fact a secret within the Trust Agreement. Now, under the Trust Code, the kids are given new legal rights to be able to find out how the others are being handled. This can cause a major family rift between siblings. You hope they will get along after you are gone; not have jealousies or hurt feelings among themselves.     Trusts rarely have language giving children these kinds of rights to information. But the Ohio Trust Code can impose these rules on trusts even when the trust document itself does not. Plus, not only do the children have these rights, the Trustee has to INFORM THEM of these rights.     If you don't want your kids to have a legal right to stick their noses into your Trust business and you especially do not want to be required to notify them of these rights, you need to take ACTION! Any new Trust Agreement must waive these rights in its terms. If you have an old Trust Agreement, it will be subject to the law unless you amend the terms of the Trust to include a waiver. The waiver must be in writing and be a part of the Trust Agreement. Don't risk mistakes by trying to make the changes yourself. See an Estate Planning Professional who can explain the new law and assist you with the appropriate steps.

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