Don’t Put Yourself in Post-Death Depression

Those of us who have gone through the trials and tribulations of putting together a comprehensive and professional family revocable trust know it is an emotional experience. You don’t care to dwell on the process, but rather enjoy the peace of mind that comes from having your household in order. Then comes the day that a spouse or loved one dies, and there is no one to deal with it but you.

Unfortunately, there is a series of steps enumerated under the Probate Code that must be accomplished in order for a revocable trust to remain in good standing with the Internal Revenue Service, even if you’re not in probate court. The responsibilities of the successor trustee don’t stop upon the trustor’s death and are mandated by the Probate Code — whether you’re in Probate Court or not.

A few examples of things that must be done before you can start grieving are as follows:

» There must be signed acceptance of the trust by the trustee pursuant to P.C. 15600. However, this requirement can be fulfilled by knowingly exercising powers or performing duties under the trust instrument. In other words, if you are the survivor, you must begin to follow the instructions in the original or amended revocable trust.

» The trustee has the duty to keep the beneficiaries of the trust reasonably informed. Notice must be given within 60 days to any beneficiary named in the trust agreement, including any event amending or modifying the trust as listed in P.C. 16060.5 through 16061.7, which substantially changes the terms of the trust. Notice may be served by mail.

» No beneficiary can bring an action to contest the trust more than 120 days from the date of notification by the trustee, or 60 days from the day notification was mailed to the beneficiary within the 120-day period, whichever is later. That’s why you want to notify the beneficiaries as early as possible. Notification doesn’t have to follow a specific format, but it must give reasonable information to inform them of the event that affects them.

This would be a good time for the trustee to see an attorney and/or a CPA, if you haven’t done so already. Below are some compassionate words of advice to attorneys who undertake the administration of the trusts after a deceased spouse has been laid to rest.

There is often a “disconnect” between lawyers and grieving clients. When the attorney and client should be sitting at a round table, the client often ends up staring across a large desk between him and the attorney who is advising and doing nothing more. That desk can become the attorney’s defense mechanism to keep from getting too close to the mortality he is dealing with, because there is nothing very happy about it.

“Lawyers are counselors in the bereavement transition, whether they want to be or not. Information and guidance on procedures and requirements are only part of what the client needs. Patience, availability and willingness to take time, to listen and to explain and re-explain those procedures and requirements are essential. The practitioner must avoid the common pitfall of a professional when confronting a client’s emotion, which is to ignore it. Practitioners often find it less upsetting to treat the survivor as ‘just another client’’ in order to maintain a reserve that borders on indifference. Although most practitioners are not trained psychologists, compassion and empathy are essential when assisting the survivor and the family in a post-death administration. Most individuals who practice in this area gain professional satisfaction from guiding clients from their expectations to their objectives. This purpose can be especially fulfilled in a post-death administration” — Thomas Shaffer, The Planning and Drafting of Wills and Trusts 29 (3rd edition, 1991).

In my opinion, other than obtaining the death certificate and giving a general accounting of the property and real estate to the CPA or administrating attorney, there is only one other thing a trustee must do. He or she must contact the financial institutions to have the accounts funded into the sub-trust. If this proves too exhausting because of red tape telephone answering devices, then this duty should also go to the attorney.

The grieving survivor or trustee should let the administrative attorney take care of all those needs as far as setting up trust and funding them appropriately. In that fashion, the survivors, 99 percent of whom don’t understand the process — nor want to understand — can be free to put their new life together.