It is now relatively easy to have a trust drawn up. You can even do it yourself, with the help of downloadable forms that can be purchased online. A cottage industry even exists to encourage people to go this route.
By going to a website, answering a few questions and making a small payment, people can quickly get a revocable living trust that can serve as their estate plan. There are some very good reasons why going that route can be a very bad idea. One of the reasons is that when reviewing trusts, courts will look to the very specific language employed in the trust documents, as a recent case out of Texas illustrates. The Wills, Trusts & Estates Prof Blog discussed the case in “Court Held That Trustee Had Authority to Sell Real Property and That the Beneficiaries Did Not Have a Right of First Refusal.”
In this case, the corpus of the trust consisted of a ranch. The trust made it clear that the settlor wished that the ranch not to be sold, but the trustee decided to sell it. The beneficiaries sued the trustee.
The court ruled for the trustee because of the specific language used in the trust. Since the language merely expressed a desire on the part of the settlor for the ranch to not be sold but did not absolutely prevent it, the trustee was free to sell the ranch.
Make sure that any trust you get uses the right language to achieve your objectives. Better yet, get your trust from an elder law attorney rather than an online service.
Reference: Wills, Trusts & Estates Prof Blog (Feb. 14, 2018) “Court Held That Trustee Had Authority to Sell Real Property and That the Beneficiaries Did Not Have a Right of First Refusal.”
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