"IT WOULD BE EASY..."

For more than 30 years, the living trust has been the subject of an extensive mass-marketing campaign. Newspapers, television, direct mail and even door-to-door flyers have spread the "good news": Buy a living trust and avoid probate court, death taxes, etc.! With such advertising, and the verbal assurance heard at seminars, thousands of Californians have purchased these documents.

Especially during the past 10 years, while working as a trust consultant and probate court researcher, I have seen the devastating postmortem (after-death) results associated with living trusts. Thousands of surviving family members have encountered an unexpected financial and emotional nightmare! For them, the "good news" was only a deceptive sales pitch!

The number and magnitude of current trust problems was officially addressed by the Continuing Education of The Bar (or CEB) in 1998. From San Diego to Sacramento, classes were held for attorneys on the topic, "Antidotes for Estate Planning Scams, Botched Trusts, and Other Disasters." The advertising brochure contained the statement, "At this informative program you'll learn about the most popular scams, blunders, and oversights so you can protect your client or undo the error and fix the client's problem."

These timely classes were definitely a "step in the right direction." Considering the number of existing trusts, however, such classes should be made available to the public on a regular basis. An increase in consumer awareness would also be appreciated by the dwindling number of dedicated lawyers who are grossly underpaid for producing high-quality trust documents.

IT WOULD BE EASY to "point the finger" solely at attorneys and other trust providers when assessing the blame for trust problems. However, before doing so, various underlying factors should also be considered. In the following paragraphs, I intend to expose one such factor which, in my opinion, has dramatically affected the "good news" results.

First, and without a doubt, the most disturbing topic to discuss or contemplate is our own mortality. It is the same for the rich and the poor, men and women, and people of all races. Death is truly the great equalizer.

Next, because of our aversion to death, there are certain activities which are extremely unpleasant. Attending funerals and visiting cemeteries are high on the list. Also, any estate planning meetings usually "touch a tender nerve." This explains why the majority of adult Americans don't even have a simple will!

It all seems to "boil down" to one simple fact: nearly everyone has a fear of death. Robert Burton, an English scholar, once said, "The fear of death is worse than death." The conscious and subconscious fear of death, in my opinion, has greatly contributed to thousands of trust related failures!

Because we live in a diversified world, much of our time is spent comparing people, places and beliefs. Also, as consumers, we are forced to compare many products, such as cars, clothes, foods and medicines. To make an intelligent comparison, knowledge must always be obtained! It is this knowledge that protects us from becoming the purchasers (or victims) of inferior or dangerous products. This is especially true when there is no government agency appointed to monitor the quality of a product. Trust documents fall into this category.

My trust consulting activities (since 1982) have given me ample opportunity to observe public attitudes. Mostly, consumers do not think of a trust as being a product which will have a degree of quality. This attitude is best illustrated by the fact that many individuals purchase their trusts by "shopping around" for the lowest price. The common sense reasoning that trusts are prepared by draftsmen who have different skill levels has eluded the public.

Why do people harbor the misconception that one trust is as good as another? I attribute this mind set to the fear of death syndrome. After all, the quickest way for anyone to complete the estate planning process is to have a simplistic attitude. With such thinking, the unpleasant thoughts of death and possible incapacitation can be kept to a minimum. Consumers rarely take the time to (1) carefully read their trusts or (2) conduct any research on trust document language or trust administration (first-time trustees often make costly mistakes!) or (3) compare their trusts with those obtained by other family members or close friends.

Trust purchasers nearly always want their documents prepared in a short period of time. Then, after the signing, they quickly put their documents in a safe place "out of sight, out of mind." This behavior, unfortunately, will neither stop death nor prevent trust disasters!

In closing, I want to emphasize two related facts. First, in our capitalistic society, there will always be opportunists waiting to take advantage of consumers who are not informed. Unskilled and unconscientious trust providers are simply examples of such opportunists. Second, until consumers aggressively pursue knowledge on trust document language and trustee management skills, the trust related failures will continue to increase. Despite the fear of death, this knowledge is essential for the protection and preservation of every trust estate!