FUNDING YOUR LIVING TRUST
     Since your trust is a written agreement between you and your trustee, breaking up the
incidents of ownership of your assets (most critically the bare title of those assets), it
necessarily follows that you must take affirmative steps to transfer your trust assets to your
trustee. You could rely on your pour over will to make that transfer after your death, but this will
require a probate which is an unnecessary expense that you could now easily avoid. Failure to
transfer your assets could also have adverse tax consequences and frustrate your attempts to
have your estate privately administered in the event of your disability.

     This page is designed to help you understand the importance and complexity of funding
your living trust. You should play an active role in funding your own trusts. When you engage
your estate planning attorney, make sure you understand your duties in this regard, so that
nothing falls between the cracks. Confirm your funding actions with your attorney and
periodically consult with him or her to ensure that your plan is still viable and properly funded.
Encourage your attorney to communicate with your financial advisors, stockbrokers, financial
planners, insurance agents, and accountants.

     Real Estate

     When you transfer your real estate to your trust, you need to draft a deed, ensure that you
don't trigger any due on sale clause you may have in your mortgage, assign your title policy,
obtain the proper transfer stamps, and record the deed with your county's Recorder of Deeds.

     Deed

     You may transfer your real estate to your living trust by quitclaim deed, warranty deed, or
deed in trust, identifying your trustee as the grantee to facilitate the trustee's receipt of a
marketable title and subsequent transfer to third parties. You should expressly grant your
trustee in your trust declaration the authority to sell and deed the property to third parties so
that there is no issue as to whether your trustee may take that action.

     Transfers into trusts are typically exempt from transfer taxes because they are transfers
without consideration, but some municipalities charge a fee for an exempt stamp.

     Mortgage

     Your mortgage may have a "due on sale or transfer" clause in the mortgage.  Under
federal law lenders may not enforce due-on-sale clauses when the borrower occupies the real
estate. Garn-St. Germain Depository Institution Act of 1982; 12 CFR section 591.5(b)(1)(vi).
But your lender require timely notice of any subsequent transfer of the beneficial interest or
change in occupancy. To avoid problems, give notice to your lender.

     If you do not reside in your property you do not have protection under federal law. You
need to obtain the consent of your lender before transferring such real estate to your trust to
avoid triggering the due-on-sale-or-transfer provision of your mortgage.

     Title-Insurance

     Your transfer may nullify your title insurance. Unless your title policy prohibits assignment,
you should assign your title policy to your trust. If your policy cannot be assigned you need an
additional insured endorsement which will amend your policy to add your trust as a named
insured. Title companies usually charge between $75 and $150 for this paperwork.

     Some title policies may provide for "continuation of coverage if the insured transfers the
title to the property to a trust, wherein the insured is the trustee/settlor, for estate planning
purposes."

  Family Residence

     You may or may not wish to transfer your family residence. One issue may be asset
protection. One spouse may be susceptible to judgments because they are in a risky
profession, or because they have creditor problems generally. You will need to consider the
benefits of owning your home in tenancy by the entireties.

     Of course if you do not put your property in a trust, you will have a probate or a bond in
lieu of probate after your death or your spouse's death.

     If your residence is in your trust you will need a clause in your trust allowing your spouse to
continue to use the residence after your death. An example of such a provision from our trust
forms:

    Spouse’s Occupancy of Residential Property in Trust

           The provisions of this Article shall apply if any interest in property that was used by
    my spouse and me as a residence at the time of my death (“the residence”) is allocated
    to a trust created under this instrument. “Residence” includes a house or condominium
    (or the beneficial interest in a land trust that holds title to a house or condominium),
    cooperative apartment, or nursing home or retirement community arrangement, and any
    fractional interest therein.

           Retention and Use of Residence. I authorize the trustee to retain the residence for
    my spouse’s life notwithstanding that the residence may constitute a large part or all of
    the principal of the trust and may lack the diversification or productivity ordinarily
    considered prudent for trust investments. My spouse may continue to use and occupy
    the residence rent free, provided that my spouse pays all taxes, assessments, insurance
    premiums, ordinary repair bills, and other expenses of protecting and maintaining the
    residence. Notwithstanding the preceding sentence, if any expense payable by my
    spouse pursuant to the preceding sentence would be chargeable against the principal of
    a trust, the trustee shall distribute to my spouse as much of the principal of the trust as is
    necessary to reimburse my spouse for payment of that expense or, if requested to do so
    by my spouse, the trustee shall pay that expense directly from the principal of the trust.
    As long as my spouse pays expenses as required by the preceding two sentences of this
    paragraph, the trustee shall not sell the residence except as provided in the following
    paragraph.

          Sale and Purchase of Residence. Upon my spouse’s written request, the trustee
    shall sell all or any part of the residence for its fair market value and shall retain the
    proceeds of the sale as principal. Upon my spouse’s written request, the trustee shall
    purchase or construct any new residence my spouse shall request out of the proceeds
    of any sale under this paragraph and shall thereafter hold the new residence as “the
    residence” subject to the provisions of this Article. My spouse may at any time purchase
    the residence from the trustee for its fair market value, determined as of the date my
    spouse delivers to the trustee a written purchase offer.

           Trustee’s Liability. No trustee shall be accountable for any loss sustained by reason
    of any action taken or omitted pursuant to this Article, and the powers granted under this
    Article shall be exercised only in a fiduciary capacity.


Stocks and Bonds

     Transfer of your stocks is a lot easier if you hold your stocks with a broker, in a street
name. This convenience is one way that brokers earn their fees. Moreover brokers are familiar
with and often recommend common estate planning, such as a trust, and your broker should
know the procedures for setting up a new account owned by your trust. You may need a letter
of direction, a copy of your living trust, and your broker's application materials to set up your
new account. Instead of giving your trustee your whole trust document, you may want to give
only a certification with the first page, last page, and trustee powers.

     Transferring stocks held in your own name is considerably more difficult and somewhat
expensive. To effect this transfer you must act through the company's transfer agent, which
means that you must first identify that transfer agent and find the transfer agent's contact
information. Know too that stock may be held in a certificate form, a book entry, a dividend
reinvestment plan, an employee stock ownership plan, or some other device. Any plan that you
may be in must be reviewed in order to ascertain the proper procedures.

     The first place to look for transfer agent information is any documentation you might have
from the company. If no such information is available you will need to do some research, for
which the internet may come in handy. First try the company's web site. If you cannot find the
company's web site you may try www.reportgallery.com.

     Generally you will need: 1. a letter of instruction; 2. stock/bond power; 3. affidavit of
domicile; 4. W-9 request for taxpayer ID; 5. title page, trustee powers page(s) and signature
page from your trust; and 6. your original stock certificate if held in certificate form.

     The stock/bond power and affidavit of domicile forms may be found on the transfer agent's
web site and you may even be able to fill in the forms online. If the W-9 is not included you can
find this form on the IRS website. A particularly inconvenient feature of this procedure is that
you must sign the stock/bond power in the presence of a bank officer or stockbroker who
participates in the Medallion Signature Guarantee Program. A notary is not sufficient.

     Then when you have your completed forms, certificates, and your letter of instruction, you
must send it via registered mail, insured for 2 percent of the total market value of the
certificates. If no certificates are involve you may use certified mail without insurance.  

     U.S. Savings Bonds

     Transfer Series E , Series EE , Seres I, and Series H  bonds with Treasury Department
Form PD-1851, which is available at the Department of Treasury on the Bureau of Public Debt
web page at www.publicdebt.treas.gov/sav/savforms.htm. While at this site you may use the
Savings Bond calculator, http://www.publicdebt.treas.gov/sav/savcalc.htm, to determine interest
earned.

     Bank Accounts

     For your convenience you may wish to have a relatively small checking account outside of
your trust. If you have less than $100,000 in assets outside of your trust, including the
checking account, you will not have a probate. If you wish to place some or all of your funds
into your trust you will simply open a new checking account in the name of the trust. You may
not need to print the trust name on the checks.  

     Likewise savings accounts and CDs may be easily transferred either by a letter of direction,
the institution's specific account form, or by opening new accounts. You may need to hold a CD
until it expires to avoid forfeiture of interest.

     Safe Deposit boxes can be transferred to the trust by providing the box with the necessary
signature cards. Assets placed in a safe deposit box in the name of a living trust are deemed to
be owned by the trust.

     Business Interests

     Transfers of closely held corporation stock may be governed by a restriction on the
certificate itself, and other documents such as a buy-sell agreement. A buy-sell agreement
should carve out an exception for stock to be held in trust for estate planning purposes. If
otherwise permissible, the stock can be transferred by voiding existing stock certificates and
reissuing new ones in the name of the trust.  

     Transfer of S corporation stock is allowed if the grantor is a citizen or resident of the United
States. The S corporation stock may be held for a maximum of two years after the grantor's
death in a living trust, provided it had been owned by the living trust on the date of the
transferor's death.  IRC §1361(c)(2)(A).

     Partnership, limited liability, or other entity interests may be transferred through assignment
of the partnership or  interest, and may be governed by a partnership agreement or operating
agreement.

     Sole proprietorship interests generally do not exist, per se. The assets of the propietorship
may be assigned to a living trust, but generally it may be more desirable to incorporate.

     Tangible Personal Property

     You may transfer tangible personal property to your living trust by assigning the property
or by executing a bill of sale. Alternatively your may prefer use a written instrument directing
that specific personal property be distributed at your death. If so you may wish to have a
clause like this in your trust:

    Gifts at My Death

    On my death, the trustee shall distribute the following gifts from the trust estate:

           Tangible Personal Property.  The trustee shall make gifts of tangible personal
    property as I direct by any written instrument signed by me.  "Tangible personal
    property" means all personal and household effects, jewelry, automobiles, collections,
    and other tangible personal property that I own at my death or that is then included as
    part of the trust estate (including insurance thereon but excluding business use
    property, precious metals, and unset gems).  I may from time to time amend or revoke
    the written instrument, and any subsequent instrument shall control to the extent it
    conflicts with prior ones.  Any decisions made in good faith by the trustee in distributing
    tangible personal property shall nto be subject to review, and the trustee shall be held
    harmless from any cost or liability as to those decisions.  I shall be deemed to have left
    only those written instruments that the trustee is able to find after reasonable inquiry
    within 60 days after my death.

          Gifts of Remaining Tangible Personal Property.  I give all tangible personal property
    not otherwise effectively disposed of to my spouse, if my spouse survives me, or if my
    spouse does not survive me, in equal share of equal value to my children who survive
    me (to the exclusion of the descendants of any child who does not survive me), to be
    divided among them as they agree or, if they cannot agree within 60 days after my death
    as the instrument determines.  

       Similar language may be used in your will. Although not enforceable in a will, most often
your executor and your beneficiaries will abide by your wishes.

     Automobiles may be transferred to your trust but for your convenience you may wish to
have title in your own name and leave the disposition as part of a small estate affidavit.

Life Insurance

     You may easily name your living trust as the beneficiary of your life insurance policies.
Your insurance companies supply beneficiary designation forms.   

Retirement Accounts

     The technicalities of designating of your trust as a beneficiary of your retirement accounts
are beyond the scope of this discussion. Generally you will want to avoid this and you will
instead name individual beneficiaries so that they can roll the retirement accounts and defer
the income taxes that will be owed on the proceeds.

     You may, however, have a disproportionate percentage of your estate in retirement
accounts, forcing you for estate tax reasons to use part or all of the IRA to fund your trust at
death, or you may need to use your trust to place restrictions on your beneficiaries.