Seattle, WA asked in Estate Planning for Oregon

Q: Do an unmarried couple need individual revocable living trusts?

We are an unmarried couple and are on the deed of trust "not as tenants by the entirety, but with the rights of suvivorship. The titles to the vehicles have each of our names on them. We each have bank(savings & Checking) accounts with designated beneficiaries up on death. We each have variable annuities with designated beneficiaries up on death. One of us has a 403b account with a designated beneficiary. We share in the ownership of all household items.

Related Topics:
4 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in Oregon

A: It sounds like you have cobbled together an estate plan that handles the first death but not the second death and also guarantees a probate for anything other than those you mentioned. Your plan also does not handle disability. Separate trusts would fix both problems. I do not recommend joint trusts for unmarried couples.

I licensed in six states including Oregon.

Tammy Lyn Wincott
Tammy Lyn Wincott
Answered
  • Estate Planning Lawyer
  • San Antonio, TX

A: I'm not licensed in Oregon; however, I certainly agree with Attorney Whitehurst, as I never recommend joint trusts for unmarried couples regardless of how long you may have lived together.

Theressa Hollis
Theressa Hollis
Answered
  • Estate Planning Lawyer
  • Portland, OR
  • Licensed in Oregon

A: No one could give you the legal advice you seek without the additional information that is obtained in an estate planning appointment with an experienced attorney. However, from the information you have provided I would guess that you and your partner will be fine with Wills. An estate planning attorney will also speak with you about Powers of Attorney and an Advance Directive for your medical decisions. Caveat: I am not licensed to practice law in Washington.

Joanne Reisman agrees with this answer

Joanne Reisman
Joanne Reisman
Answered
  • Estate Planning Lawyer
  • Portland, OR
  • Licensed in Oregon

A: A revocable living trust is not the same thing as a trust deed. So I am not clear what you are asking about. As to the Trust deed which is the deed to your home secured by the trust deed and most likely also a promissory note, it should say "tenants in common with a right of survivorship". What you have might work but it is a bit odd because "tenants in the entirety" is what is used for married couples and also creates a right of survivorship. So what it says is effectively saying "not as a married couple with rights of survivorship, but with rights of survivorship anyway." A bit awkward as what a I suggested "tenants in common with a right of survivorship" just gets to the point.

If you only say tenants in common then it is presumed to be a 50:50 split. If you wanted a different arrangement, like 60:40 the deed would have to say specially that it is 60:40 and explain who has what percentage.

To tell you the truth, you attempt to spell out that you are sharing everything equally but no getting married would be much easier if you had a written domestic partnership agreement. You may or may not want to investigate having revocable living trusts but revocable living trusts are not for everyone and not for every situation. I think at a minimum you should invest in a good domestic partnership agreement and the agreement can also agree to the disposition of assets when one of you dies. That would create a binding contract that might come in handy if you nice and tidy arrangements right now aren't maintained. A domestic partnership agreement is also invaluable if for whatever reason you later break up. Because without such an agreement the court has to guess what your ownership interests are in all your property and it becomes one person's word against the other.

As for your question on joint trusts, I will not draft joint trust for any of my clients, even married clients. It's not that hard to draft one trust, then duplicated it with a few changes to make it fit the other partner. In the case of a revocable living trust, you will then deed your real property as half to one trust and half to the other trust. Assuming the only other items you own are two cars and one 403B plan, none of those items would be transferred to the trust. You run into all sorts of tax issues when you try to move a tax deferred retirement account into a trust. It can be done but it's complicated. Best left out of the trust. You also don't put cars into a RVLT as that can complicated getting your car insurance. Also cars are pretty easy to deal with in the event of disability or death of your partner, as long as you have a Durable Power of Attorney and/or a valid Will.

The fact that you are on a website asking these questions makes me suspect you are trying to do this yourself with some type of online form system. These forms may be inexpensive and may actually work IF and I mean a very big "IIIIIFFFFFF" the person also knows the law and how things work in the event of death and disability. The grand majority of people using these form systems have no clue how the forms truly function or don't function and by the time you need to rely on these forms it is too late to change or correct them. Do yourself a favor, invest a few buck in getting sound legal advice.

Justia Ask a Lawyer is a forum for consumers to get answers to basic legal questions. Any information sent through Justia Ask a Lawyer is not secure and is done so on a non-confidential basis only.

The use of this website to ask questions or receive answers does not create an attorney–client relationship between you and Justia, or between you and any attorney who receives your information or responds to your questions, nor is it intended to create such a relationship. Additionally, no responses on this forum constitute legal advice, which must be tailored to the specific circumstances of each case. You should not act upon information provided in Justia Ask a Lawyer without seeking professional counsel from an attorney admitted or authorized to practice in your jurisdiction. Justia assumes no responsibility to any person who relies on information contained on or received through this site and disclaims all liability in respect to such information.

Justia cannot guarantee that the information on this website (including any legal information provided by an attorney through this service) is accurate, complete, or up-to-date. While we intend to make every attempt to keep the information on this site current, the owners of and contributors to this site make no claims, promises or guarantees about the accuracy, completeness or adequacy of the information contained in or linked to from this site.