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Vulnerable Seniors Increasingly Targeted For Living Trust Sales

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Commentaries on the dramatic increase in sales of living trust instruments have appeared half a dozen times over the last decade in Elder Law Issues. As we have previously observed, the living trust is one among several fine estate planning tools (see, for example, the generally positive reviews accorded to living trusts by the Kiplinger’s Retirement Report). Not everyone, however, needs a trust. Many people selling trust kits or packets are in no position to advise whether a trust is appropriate.

Most living trust kits and software fail to address the unique needs of the individual considering whether a trust will be useful. These “fill in the blank” kits may ignore differences in state laws and are almost always silent on possible eligibility for Medicaid.

Trust kit salespeople, many of whom target the elderly through phone solicitation or door to door calls, tend to focus their message on common themes such as “Avoid the high cost of probate,” or “Do away with estate taxes.” These sales people are not likely to describe actual probate costs, or acknowledge that the vast majority of estates are not subject to federal or state estate taxes. More perniciously, some trust salespersons use the concept as an introduction to encourage inappropriate investment in annuities, or even to gain control of the seniors’ assets.

Several state Attorneys General — ArizonaColoradoIdahoMichiganSouth Dakota, to name a few — address the concern surrounding the living trust boom as it affects senior citizens through a variety of publications about consumer fraud. Few states directly regulate the sales of living trusts. However, several have initiated litigation to stop “trust mills” from coercing vulnerable clients who cannot afford or have no need for a living trust.

In a case recently ruled on in Nebraska, a dispute arose among family members after all family property was conveyed into a trust formed by directions included in a trust kit. The court notes that the Nebraska Attorney General filed suit against the kit’s seller, the Reverend J.H. Schroeder. The Reverend Schroeder was found to have “employed unfair and deceptive acts and practices by misrepresentation” in 1986.

The current Nebraska Supreme Court case, In re Loyal W. Sheen Family Trust, March 22, 2002, caps the extensive legal proceedings required to interpret the intentions of Loyal W. Sheen and his wife Veona when they used the Reverend Schroeder’s kit to set up a living trust in 1979. If their purpose was to avoid legal proceedings and family disharmony, they were unsuccessful.

The incidence of living trust scams is on the rise. AARP cites a recent survey that suggests that approximately four million seniors may have purchased expensive living trust products of no value to them. The Federal Trade Commission warns against the “cookie cutter” approach to estate planning, and reminds consumers that if a trust kit is sold at a residence or anywhere other than the seller’s permanent place of business the seller must give written notice that there is a right to cancel within three business days.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.