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By Herb Schmulewicz | Agent in Burlingame, CA

Burlingame Real Estate Agent Herb Schmulewicz 650-784-1849: Living Trusts vs Power of Attorney: Hillsborough Real Estate Agent

Protecting your assets may not be good enough if you haven’t provided your family with your documented wishes.


I was asked to provide a comparable market analysis to a potential client just a few days ago. I was diligent on my analysis and was very prepared for the listing presentation.  I arrived at the home, was greeted my two women, and began to have nice conversation.  As we were in dialog, the woman who dominated the conversation informed me that her sister (who owned the house) had dementia and they needed to sell the home. They wanted to move her to Michigan so the owner can be cared for and live with her sister.   Please don’t misunderstand this, as there was nothing criminal going on here at all. It was simply family members deeply caring about one another.   As we were chatting, the son of the owner arrived home, and we all sat around and spoke about the situation.   They were all concerned for the mom/sister, worried about her and felt she needed full time care.  They had already gone to doctors, and explored many options, accepted the situation and were making the decision to sell.  The family would need the proceeds from the sale to help pay for on-going care.  Our entire conversation shifted from explaining pricing and marketing strategies, to the care for a family member.   I was informed that the sister had power of attorney and both the sister and son, were working through who would handle what tasks.   We were working on a plan to find the mom a temporary place to stay and I offered to introduce them to someone I know who owns and operates  senior care centers through-out the San Mateo Peninsula.   I then went on to ask them if a trust existed, and they were unclear. They thought there may be one, but were not sure.   I tend to process a lot, all the time, and people can misread me when I do that, but thought about it a bit more, and decided that we should have a definitive answer, before we went further.  I was able to look up the property profile and discovered that the property was in a trust and confirmed that fact with the family.  As we continue to chat at the table, the family had no idea of where the documented trust was located.   Well, at this point, I had to explain that the power of attorney could not be used for the sale of the property and that the living trust would be required by all in order to complete the sale of a property.  Living trusts are the official record of what someone’s wishes are and under what conditions.  They become an instrument that is used to carry out specific instructions and provide explanation, helping all make sound decisions during very heartfelt times.  

The family is already going through a tough time, and I felt bad, but could not take the listing without the family having access to the Living Trust.  The intent is to help a family member; however, the document is intended to help all, and protects everyone.  The difficulty in this case is, without a copy of that trust, the sale will be halted indefinitely until the family can either find locate the trust or seek out further legal assistance to work through the process.  It may sound a little odd, as this is a family trying to help, but listing a property for sale, without having a copy of the trust, would create a legal nightmare and may open and expose all parties to an unwanted lawsuit.

Please – if you have a living trust, make sure your family members have access to it, keep a copy in a safe deposit box with granted access to other family members and of course revisit the details periodically.  I highly recommend we all have a trust in place, and that we all make sure our loved ones have access to it.  Having outlined our wishes is absolutely the right thing. It makes decisions for our loved ones a little easier during an emotional time. 


I plan to help this family work through this, and simply wanted to write this as a reminder to all.


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