1.6.1 Living Trusts are Heavily Marketed
Living trusts are “being hyped these days on television, in do-it-yourself kits and at coffee-and-doughnuts seminars.” Roha, “Living Trusts: Beyond the Hype,” Kiplinger’s Personal Finance Magazine (October 1991).
Unfortunately, a popular impression is fostered by this marketing that funded revocable trusts are “cure-alls,” appropriate for every situation. “[W]hen hurled like some all purpose placebo at every estate plan that comes through the door, it is only by fortunate coincidence that revocable trusts produce the desired advantages.” Jones, “Putting Revocable Trusts in Their Place,” 129 Trusts & Estates, 8 (September 1990).
“The sale of a trust package, where the insertion of a product precedes the identification of the problem(s), is the antithesis of good planning, a process which starts with an investigation of your problems and goals and ends with the implementation of one or more appropriate tools or techniques.” Leimberg, The New Book of Trusts, Archive Message 60, Leimbergservices.com (8/20/99).
Clients are bombarded with emotional, and misleading, information. For example: “Probate … is essentially a form of private taxation levied by the legal profession upon the rest of the population.” Dacey, How to Avoid Probate! (Crown, 1983).
Indeed, in some cases, the public marketing (including door-to-door sales efforts!) has resulted in action by a number of attorneys general in several jurisdictions. Stiegal, Norrgard & Talbert, “Scams in the marketing and Sale of Living Trusts: A New Fraud for the 1990â€²s, ” 26 Clearinghouse Review, 609 (October 1992): “Many older people are unfamiliar with or fearful about probate and guardianship; the marketing and sale of living trusts to these people is an area ripe for fraud and abuse.” (Id. At 609).
Aggressive “trust mills” have foisted unnecessary and costly documents on elderly individuals, using fear and greed as leverage. Efforts at regulating “trust mills” have proved elusive. Vallario, Living Trusts in the Unauthorized Practice of Law: A Good Theory Gone Bad, 59 Md. L. Rev. 595 (2000).