The transition from life to death for most of my clients is a slow process. Generally, we see an extended period of incapacity prior to death. Once diminished capacity arises, succession teams have it easier when a living trust and powers of attorney for business and health care are in place.
Upon temporary or permanent incapacity, the successor trustee nominated in the trust manages the trust's assets. This person is usually a spouse or one's children. The same person is often nominated in one’s powers of attorney as well. As the successor trustee is limited to the affairs of the trust, having the powers of attorney makes the estate plan more comprehensive.
Through the creation of some simple documentation, the successor trustee can be empowered quickly and inexpensively. Upon so doing, the successor should obtain access to the assets of the trust.
What happens when an asset is not in a living trust and the custodian is withholding access to it? Often times a court supervised conservatorship proceeding is required.