Trust administration if the relative or friend is incapacitated:
If the relative or friend is incapacitated, matters a successor Trustee may need to attend to include:
- Reviewing the applicable Trust Agreement, and all amendments, to see if the test for determining whether the relative or friend is incapacitated has been met, and if so, what your responsibilities are, and what discretion you may have, as successor Trustee.
- Obtaining from the IRS a new Taxpayer Identification Number for the Trust.
- Making a list of all assets that are titled in the Trust, and determining what the estimated income from these assets is.
- Re-titling all of the Trust assets into your name, as successor Trustee of the Trust.
- Making a list of all assets that are not titled in the Trust, determining which of such assets can be used to make payments for the benefit of the relative or friend and any other Trust beneficiaries, and then determining the best method for utilizing such assets—this may involve reviewing any Power of Attorney for Property that the relative or friend may have signed, and discussing this matter with the Agent who is acting under such Power of Attorney.
- Reviewing how the Trust assets are currently invested, and then determining whether any securities should be retained or sold, and if sold, how the net sales proceeds should be reinvested—this may involve discussions with an investment advisor and an accountant.
- Ensuring that any home or apartment is made secure, and that arrangements are made for the timely payment of (a) any amounts due under any mortgage or home equity loan, and (b) any other amounts that may be due, such as condominium assessments, homeowners insurance policy premiums, and real estate taxes.
- Determining whether any home or apartment that is owned by the relative or friend needs to be sold to raise cash to make the payments that are either required or authorized under the Trust Agreement.
- Determining the identity of any additional beneficiaries to whom payments may be made during the incapacity, and then informing them of what has happened.
- Determining if there is a Long-Term Care Policy in force, locating and reviewing any such Policy, and then contacting the insurance company to see if any Policy benefits are then payable.
- Establishing a budget to determine if the income from the Trust assets, the Trust assets themselves, and any payments due under a Long-Term Care Policy will be sufficient to make the payments that are required or authorized under the Trust Agreement—this may involve discussions with an accountant.
- Determining whether it is in the best interests of the relative or friend to continue to reside in his or her current home or apartment, or be moved to a continuing care or other type of facility--this typically involves balancing the quality of care that may be obtained under the various alternatives, with the relative costs of obtaining such care—in most instances, it will be extremely beneficial to discuss this matter with both an accountant and an investment advisor, as well as the person acting under the Power of Attorney for Health Care that may have been signed by the relative or friend.
- Ensuring that the Personal Income Tax returns of the relative or friend are timely filed and up to date, and that all proper income taxes are timely paid—again, this may involve discussions with an accountant.
- Ensuring that the Fiduciary Income Tax returns for the Trust, which are now required to be filed each year, are timely filed.