In California, living trusts are not recorded. Therefore, a premium is placed on finding the executed document. Even a copy is better than the original.

What if you cannot find either the original or a copy? I would then ask you how do you know there was a revocable living trust executed? If you are certain one was prepared, you may want to speak to the attorney whom you think prepared the document. If you do not know who that is or if it was not prepared by a lawyer, then this is of no assistance.

A second set of questions involve whether any of the decedent’s assets were retitled in the name of the living trust? For example, was a new deed prepared, signed, and recorded with the county recorder transferring the house into the revocable living trust? Was the title on a bank account changed? If the trust cannot be found and title was not changed on any assets, then even if a trust was created, it by definition cannot have any effect.

On the other hand, if assets were retitled in the name of the trust, there is evidence that there was a trust. After you have exhausted your search options, the safe thing to do is to go to court and get an order allowing someone to serve as the successor trustee. The assets will have to be distributed according to the law of intestacy.

Most of you reading this are aware that since January 1, 2010 there is no federal estate tax. Some states continue to have an estate tax while the majority of states are coupled with the federal government and therefore do not have an estate tax.

Dan Duncan made an incredible amount of money as a gas pipeline mogul. He lived in Houston and when he died on March 28, 2010 his estate was estimated to be 9 billion dollars.

Many people with his net worth have done at least some estate planning – generally a little more than the traditional revocable living trust and will. Even if he did not do comprehensive estate planning permitting his family to retain the vast majority of the estate, he may have left a lot of his money to a foundation like Warren Buffet and Bill Gates are doing.

However, it is likely that the federal treasury will lose out on a lot of money. In the event that he had not done estate planning, Mr. Duncan’s estate would have had to pay somewhere in the neighborhood of $4 billion in taxes.

Now, it may not be a total loss to the federal treasury. There may be capital gains taxes that will have to be paid because of the loss of a step up in basis. I do not know the composition of Mr. Duncan’s estate.

Nevertheless, I expect that the result of Mr. Duncan’s death has people in Congress talking. Mr. Duncan’s death may have huge effects on most of us who are simply concerned with living trusts and the avoidance of probate.

For the most recent analysis of what is occurring concerning the estate tax, this article from Forbes is as good as any. I will continue to post other articles that endeavor to keep us all current.

In California we have Medi-Cal. In most of the rest of the country, it is called Medicaid. In any event, this article in the Wall Street Journal sets forth some interesting points on Medicaid.

Whether you agree that there should be or not, there are many legal strategies that can be utilized to qualify for Medi-Cal. Some of those strategies will undoubtedly be eliminated because of the budget shortfalls, but at this time estate planning attorneys, including many who prepare living trusts, wills, special needs trusts, and irrevocable trusts are familiar with them and select the most appropriate ones for their clients. It makes sense for people who think that a family member might qualify for Medi-Cal to do the planning sooner rather than later!