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July 12, 2022

What happens to my Trust if I am incapacitated?

A well-drafted Trust contains many safeguards and instructions for what should happen if the Trust’s creator becomes incapacitated.

Regardless of age, health, or mental capacity, the creator of a Trust remains the primary beneficiary while alive. (Or co-beneficiary, in the case of married couples).

If you are not physically or mentally well, your successor trustee can step in and manage your assets on your behalf. However, no distributions are made to beneficiaries until the creator is dead.

Additionally, if you have decided to resign as Trustee or experience a period of incapacity, you may be later reinstated, as Trustee, if you wish. While you are alive, your Trust is for your benefit alone. If you are not acting as Trustee for any reason, your successor Trustee has a legal obligation to act in your best interest.

For married couples, if one spouse is incapacitated (or dies), the other spouse continues as the sole Trustee.

(It is worth noting that Trusts are highly flexible documents organized in numerous ways. The above outlines a standard design for a Revocable Living Trust under Missouri law).

This article represents the opinion of the author and is intended for educational purposes. This article does not constitute legal advice, nor does it create an attorney-client relationship. One should always consult with an experienced attorney before making estate planning decisions.

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