Tag Archives: living revocable trust
Gay and lesbian couples are often concerned that their “non-traditional family” will be a disadvantage in custody decisions. While technically this issue is never to be determinative of custody disputes, lest the Court violate the Equal Protection Clause, many gay and lesbian couples feel that their sexual orientation played a role in the ultimate disposition of the Court. Putting aside potential biases of certain judges, there is at least one case that seems to lend credence to those concerns. In 2008, the Second Appellant District in Clark County decided a case by the name of Page v. Page in which the Court specifically stated that a homosexual relationship of a mother caused adverse affects to the minor children and warranted a change of custody from that mother to the father. The facts of that case can be summarized as follows:
Four years after the mother was designated the residential parent of both children, the father filed a motion to modify the allocation of parental rights and responsibilities. The common pleas trial Court granted the father’s motion and awarded him custody. The appellate court held that the common pleas court did not err in finding that a change of circumstances occurred as there was evidence that, as a collateral result of the mother’s relationship with her same-sex partner, both children had experienced personality disorders, and therefore, modification of custody was in the children’s best interest. The court determined that the adverse collateral effects of the mother’s relationship with her partner and the partner’s role in the children’s lives showed little room for improvement in the future.
While the Court was careful to say that it was not basing its decision on the simple fact that the mother was a lesbian, but rather the collateral affects that her relationship had on the children, it should give pause to the gay and lesbian couples fighting for custody. This is something to keep an eye on in the future as more and more gay and lesbian couples fight for custody of one of the partner’s minor children.
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So you are sitting around listing your new year resolutions: quit smoking, lose ten pounds, start jogging, and most importantly hire an attorney to draft that will you have been putting off for years. Alright, so no one made it their resolution to have a will drafted, but it still makes for a nice segue into my first blog entry of the year:
What advantages does a living trust offer over a will?
A will is a document that describes the final disposition of all your assets after you die.Upon death your will is submitted to and approved by the probate court.A trust is a document that controls all assets transferred to it.It is helpful to think of a trust document as a large Rubbermaid bin that holds all of your assets and you alone control these assets as the sole trustee.Upon your death a successive trustee named within the trust document then controls those assets.
Perhaps the most cited advantage of a trust over a will is the avoidance of probate.Under a will the transfer of property is overseen by the probate court which can generate substantial attorney fees.Compare that to trust whereby property is immediately transferred to a trustee upon the death of the testator thereby circumventing the need for probate.Thus, a living will is especially helpful to those who own property in different states as they can avoid numerous probate procedures.
Additionally, since a trust does not need to be submitted to the probate court it is not public record and as such cannot be seen by just anyone.A will on the other hand is public record and can be seen by any curious citizen.
In the unfortunate event of your disability a living trust is more desirable than a traditional will.If your total assets are held in a trust then a successive trustee will automatically have the power to control and manage your property.However, if you have a simple will then you would also need a durable power of attorney or a court appointed conservator to have the same effect.
Whether or not a trust or a living will is best for you must be determined on a case-by-case basis and there are many advantages and disadvantages not mentioned in this brief posting.This summary is meant to serve as a primer and should not take the place of consulting an attorney.Be sure to check back soon for my next post where I will address some situations in which a will may be a more appropriate final disposition vehicle than a living trust.