Estate Planning

Home / Blog / Archive by category "Estate Planning"

The Duties and Powers of a Trustee

Estate Planning Attorney St. Peters, MO

A trustee of a living trust must always act in the best interest of the trustor. The trustee is responsible for managing the trust property, in addition to upholding certain legal obligations to beneficiaries. A trustee without any experience may want to talk with an attorney who is familiar with estate legalities, as support as tasks related to the role are performed.

A trustor often appoints an either themselves, a loved one, or family member as the trustee. In situations where the trustor listed themselves as a trustee, they remain in control of their assets. If the trustor chooses someone else solely as the trustee, then he or she is releasing the trust property to this individual instead of themselves.

Q: Are there rules in which the trustee in required to follow?

A: The trustee must abide by the instructions as written by the trustor, unless the directions are unethical or impossible. The trustee is to abide by state laws and decisional laws established by the courts. A trustee that does not read the trust thoroughly, may accidentally commit an error in regards the trustor’s wishes. The trustee is to confirm that the trust entails two kinds of provisions:

#1 Administrative Provisions – this governs what the powers are of the trustee, rules for interpreting the trust, payments of taxes or expenses, and other procedures.

#2 Dispositive Provisions – this governs how the trustor wants the property to be distributed among beneficiaries.

Q: What are the basic responsibilities of the trustee?

A: The trustee is to safeguard, collect, and manage trust assets. The trustee is to also file the trustor’s tax returns and pay any dues from the trust funds directly. If the trustee does not take care of the trust in a respectful and compassionate manner, the beneficiaries may file a complaint to the courts. Anytime that a trustee is confused about a role or doesn’t understand legal terminology, it is recommended that they get help from an estate planning attorney St. Peters, MO relies on. The basic duties include but may not be limited to:

  • The trustee is to be dedicated to the best interests of the trustor’s wishes and assigned beneficiaries
  • The trustee is to fulfill the position and uphold a duty of care to beneficiaries.
  • The trustee must manage the trust only in the interest of beneficiaries, and dealings with them are to remain impartial.
  • The trustee must take precautions to maintain control of the trust property, safeguard the assets, and play a productive role in its management.
  • The trustee is to not mix the property within the trust, with his or her own personal property.
  • The trustee under no circumstances is able to use the trust property for one’s own benefit or profit.
  • The trustee is to not participate in a transaction that will cause a conflict of interest among beneficiaries.
  • The trustee is to take acceptable steps towards defending the trust in the event of a lawsuit or claim.
  • The trustee is not permitted to delegate tasks to others, and must perform the tasks associated with the role themselves.

Contact Legacy Law Missouri for their insight into estate planning and the duties and powers of a trustee.


Estate Planning Lawyer

Trusts are often considered a secure form of estate planning. While that is generally true, there are still a few things that can cause a trust to be challenged and end in litigation.

Who can Challenge a Trust

Only someone with “standing”, also known as an “interested person” can challenge a trust. An interested person who is someone who:

  1. Is a named beneficiary of the Trust
  2. Would benefit if the Trust was found invalid

Interested persons may include spouses, children, heirs, devisees, or anyone who may have a claim against the estate.

Challenges to Plan

Lack of Capacity

Challenging a Trust on the basis of capacity typically requires showing that the decedent did not understand the nature and extent of the property or the identity of natural heirs. Typically, this kind of challenge is backed by medical evidence showing mental impairment.

Undue Influence

A challenge of undue influence means the decedent did not make the Trust of free choice, but solely due to the improper influence of another person.

Fraud, Mistake

A Trust can be challenged for fraud, such as when the decedent’s signature is forged. Sometimes a Trust that has been previously revoked is mistakenly administered.

Lack of Execution

Each state has its own laws, but generally, a Trust must meet the following elements to be considered valid:

  1. The Trust is in writing (not verbal)
  2. The Trust is signed by the Grantor (the person who created the Trust)
  3. The Trust is signed and stamped by a notary

If a Trust lacks any of the above elements, it becomes susceptible to challenge.

Administration Challenges

Creditor’s Claims

If a creditor comes forward and makes a claim against the estate, it could delay administration of the trust and potentially end up in litigation.

Removal of Trustee

A Trustee can be removed for incapacity, wrongdoing in the administration of the Trust, or breach of fiduciary duty. Removal of a Trustee will always delay administration and is usually ordered by a court.

Avoid Challenges and Litigation

Use a Lawyer

Always use a lawyer to create an estate plan. Cheaper online methods do exist, but hiring a professional is the best way to ensure that: 1) your assets are truly protected, 2) the trust follows current law, and 3) that your wishes are carried out legally and correctly.


Trusts are created by humans and humans make errors. Your lawyer and their staff will proofread the estate plan, but you should, too. The smallest error in trust language could have huge ramifications, including affecting trust administration and opening the Trust up to challenges.

Update Regularly

Laws change often, so the general recommendation is to review and/or update your estate plan every 3-5 years, or at any major life event (marriage, divorce, children, career change, etc).

If you are looking to set up a living trust, give an estate planning lawyer Phoenix, AZ offers a call today.

Thank you to our friends and contributors at the law offices of Kamper Estrada, LLP for their insight into estate planning and trusts.

What Happens To My Joint Trust If I Get Divorced?

What Happens To My Joint Trust If I Get Divorced?



What Happens To My Joint Trust If I Get A Divorce?

What Happens To My Joint Trust If I Get Divorced?

              Going through a divorce can be an extremely painful, stressful and seemingly unending process.  It affects so many different aspects of your life.  This article discusses just one of the effects, which is your estate planning, including your living trust, will and power of attorney documents.

What happens to my estate plan when I get divorced?

This is a great question and one that a qualified estate planning lawyer Dardenne Prairie can assist you with.  In Missouri, a divorce essentially treats any distributions intended for your ex-spouse as void.  In other words,  you have a will, it says that when you pass everything goes to your ex-spouse, but upon finalization of the divorce, that provision for your now ex-spouse is treated as if they have predeceased you and therefore the distribution would pass to your contingent beneficiaries, which would usually be your children.

What happens if I have assets that will avoid probate, such as a life insurance policy?

The Missouri law treating the ex-spouse as a voided beneficiary only covers assets in probate.  If you had a life insurance policy that left your soon to be ex-spouse as the primary beneficiary, you would need to change that after divorce, because if you pass away, your ex-spouse would inherit.  This happens all the time, unfortunately, and that’s why it’s important to have a game plan to review your estate plan (or establish one) after your divorce is final.

The second thing to note is that any distribution to your ex-spouse upon your passing is only void if the divorce is final.  If you expect your divorce to be extended for a period of time, it’s important to meet with an estate planning attorney to make changes anyway.  Under Missouri law, you can adjust your estate plan to cut out your soon to be ex-spouse.  You can’t completely cut them out (unless you have a prenuptial agreement or postnuptial agreement), but you can ensure that they will not inherit everything, which would be the case if you did nothing and passed before your divorce was finalized.

What happens if I have a trust and am getting divorced?

That depends on the type of joint trust you have.  An irrevocable trust attorney O’Fallon, Missouri  can explain in more detail, but the terms of this type of trust cannot be changed after the trust is created, regardless of divorce.  This type of joint trust, however, is usually created by spouses to benefit their children.

If, on the other hand, you have a revocable joint trust, both spouses can retain control over the assets.  Of course, this assumes you would want to do that.  Most of the time, spouses want to dissolve their trust and distribute assets as agreed in their marital settlement agreement.  From there, you can take the safest step and create a new estate plan with your own trust, a new will and new powers of attorney.  You’d probably want to do that anyway, since your now ex-spouse is usually listed as your principal in your healthcare power of attorney and durable power of attorney documents.

Do you really want your ex-spouse making healthcare calls for you at the end of life?  Me neither.

As you can see, the best practice, at a minimum, when you are going through a divorce is to sit down and review your estate plan with an experienced estate planning attorney.



Do You Have To Change Your Estate Plan If You Move Out Of State?

Do You Have To Change Your Estate Plan If You Move Out Of State?


A common question from clients that move away from Missouri is do they need to change their estate planning that I completed for them.

The answer is probably.  Here’s why:

Each state has different laws with respect to estate taxes, trusts and many have adopted different statutes with respect to probate and inheritance generally.

Here’s an example:

I used to practice law in New Jersey, which had, at least at that time, a statute that required some beneficiaries from wills and trusts, usually farther than an immediate family member like a cousin or an uncle, to pay inheritance tax on anything received from a relative’s estate.

Attorneys draft estate plans to take to the most advantage out of weakly drafted statutes or to utilize breaks in the law.  And so we drafted wills and trusts in New Jersey that not only had provisions for that very specific inheritance law but took advantage of it where possible.

Different laws among states is not the only reason why you should amend or change your estate plan if you move away from Missouri.

Another issue is the perception by some that out of state documents are a problem.  Banks are a really good example of what I would call a “skittish acceptor” of legal documents.  Having dealt with banks (and faced repeated non-issues made into issues by them) as a probate lawyer St Peters, I can tell you that there is the way things are and the way banks what things to be.

One of the biggest problems with banks is that they no longer train their employees well enough.  As a result, any legal documents are often met with an immediate call to the “legal department”, which is almost always in another state and, as a rule, routinely denies the validity of a document.  This is often just because the bank employee couldn’t properly explain the issue to the legal department and since the default answer at legal is “no”, you might end up in a difficult situation where you have a perfectly acceptable legal document that you cannot utilize because of the bank.

So what am I saying?  Well, you could run into a problem at a bank and since you won’t find out until it’s maybe too later to fix the problem, it’s always the safer practice to update your estate when you move.

By the way, that process is relatively simple.  If you have a Missouri living trust, you’ll need to change the “governing law” provision in your trust document.  It will be Missouri and need to be changed to whatever state you have moved to.  Note that this is a relatively simple change because you’re simply amending your trust to change that one provision, not re-writing the whole thing.

Since you might be moving closer to other loved ones who might now be closer than they were before, it might make sense to add them as power of attorney, healthcare proxies, executors and trustees.

A qualified and experience estate planning lawyer where you move to can review your Missouri plan and help you pinpoint other changes, if any.

Common Estate Planning Terms in Wills and Trusts….

Common Estate Planning Terms in Wills and Trusts….

Common Estate Planning Terms in Wills and Trusts

Estate planning is an area of the law with plenty of legalese. The placement of certain in documents like Missouri wills and especially special needs trusts attorney St.Common Estate Planning Terms in Wills and Trusts
Estate planning is an area of the law with plenty of legalese. The placement of certain in documents like Missouri wills and especially special needs trusts attorney St. Peters, Missouri can make a huge difference in the document.

Here are some commonly used estate planning terms in wills and trusts.


Testator / Testatrix: The person creating the will. Formally, a male creating a will is a testator, whereas a female is referred to as a testatrix.

Executor: The person or persons named in a will who will administer the estate when the testator dies. The person in charge. In Missouri and other states, an executor is called a personal representative.

Beneficiary: The person(s) named in a will that the testator wants to inherit their property. In a trust, this person is also referred to as a beneficiary.

Heir: The persons who will receive your property if you do not have a will in place when you die. Dying without a will is called “dying intestate” and each state, including Missouri has a list of heirs that receive your property when you die intestate and in what order. For example, in Missouri, many people don’t know that if a spouse passes away and does not have a will, all non-joint property owned by the deceased spouse goes partially to the children, if any, and partly to the surviving spouse. All receiving property are referred to as heirs.

Bequest: A specific item listed in a will, other than real estate, to be distributed at death as a gift. Example: “I give all of my silver coins to Joe.” The bequest is only the silver coins, not any others and Joe is the beneficiary of the item.

Devise: Real estate given at death, received by a devisee. Example: “I give my 10 acre farm to Joe.” The testator has devised the farm to Joe, the devisee.

Bequeath: Means that the testator is giving property to someone other than a person. Example: “I give my book collection to the St. Charles County Library.”

Bond: A policy that requires the executor to insure the estate, usually for the value of the estate. The idea is that if the executor runs off with the money, the heirs / beneficiaries are protected by the bond in place. A testator can state that no bond is required in their will.

Real Property: Land of any acreage and/or a home. Also includes anything affixed to the property. Example: Joe has a 10 acre farm, which includes his home. He also has a pole barn which is attached to the land. All are examples of real property.

Tangible Personal Property: Any property that you can actually touch. Example: Loose cash is personal property. Cash in a bank account is not personal property.

Intangible Property: Any property that you cannot touch. Example: Mutual funds that you hold in an account are intangible property.

Titled Property: Property that may or may not be tangible that has a registration. Example: A bank account. It is titled in your name, has an account and you get statements every month in the mail. Also an insurance policy because it has a policy number, a named insured and beneficiary.

Revocable Trusts

Grantor: The person creating the trust. Also referred to as a Settlor or Trustor.

Trustee: An individual or individuals listed in the trust to administer the trust for the grantor. The grantor and trustee are often the same person.

Beneficiary: Same as with a will, a person listed to receive assets in a trust.

Estate Tax: A tax levied either by the federal government and some states when a person passes away. The estate tax is much less of an issue because the estate tax exemptions are much higher than they used to be.

Estate Tax Exemption: An amount of money that a person is allowed to have when they pass away that does not result in federal estate tax being levied. In 2018, for a person this amount is approximately $11 million dollars. Any amount above that, without proper planning in place, is subject to taxation.

No-Contest Clause: A provision in a trust (or a will) that states that if a beneficiary to the trust contests their inheritance, they risk losing that inheritance if they file a lawsuit. These provisions vary greatly, but are enforced by courts and are a good way to ensure that beneficiaries don’t litigate your estate when you pass away.

These are just some of the terms that you would come across in a will or trust lawyer O’Fallon, MO. Creating documents with an estate planning lawyer is just part of the process. The real important part is understanding how they work and what the terms mean. Don’t get discouraged, we are all masters of our own knowledge and what’s natural to you would be unnatural to your attorney!