How to Prepare for a Charitable Giving Consultation

Before consulting with an attorney regarding charitable giving, it is important to understand what trusts are and what disputes related to trusts are most common. A trust is a legal instrument which allows a property’s owner to transfer that property to a beneficiary, through the use of a third party, who is known as a trustee. The trustee is responsible for managing the property on behalf of the beneficiary. 

Generally speaking, trusts are an efficient way to transfer assets in a way that allows the owner to control and manage the process. An example of this would be if the property’s owner places specific conditions on the trust property, and those conditions must be met before the trustee will transfer the property to the beneficiary.

Charitable giving refers to the act of donating to a charitable cause. This can be done both in life and in death, and it is most commonly accomplished through the use of a will or trust. Charitable giving serves dual purposes: helping a charitable cause, and giving the donor and their heirs a significant tax break. 

A charitable trust is similar to other trusts in that it is a property interest held by one person, for the benefit of another person. The only difference between a charitable trust and any other types of trusts is that a charitable trust is always irrevocable. What this means is that once you establish a valid charitable trust, you cannot revoke the trust in order to reclaim your property interest.

In order to be a legal and valid trust, a charitable trust must have the general purpose of benefiting the public good. Charitable purposes could include:

• Giving to the poor, such as a homeless shelter or food bank;
• Advancing education and knowledge, such as a scholarship fund;
• Church or religious purposes, such as specific church or religious organization;
• Promoting public health, such as a community health clinic; and/or
• Advancing public government interests, such as parks, museums, etc.

The charitable trust’s beneficiary must be indefinite, and cannot be an individual. This means that charitable trust beneficiaries cannot be a person; rather, beneficiaries must be an organization, or a group. The charity acts as the trust’s trustee, and oversees the funds while monitoring their distributions to the recipients. They are also responsible for investing the property, handling funds, and other activities related to the management of the trust. Contributions to a charitable trust are generally tax exempt, according to IRS rules.

Most disputes related to trusts arise when the trustee breaches their various fiduciary duties. This would involve the mismanagement of the trust by the trustee. One of the most common disputes involving charitable trusts involves the trustee using the trust funds for their own use, against the goals of the trust itself. 

Some other examples of charitable trust disputes include but may not be limited to:

• Disputes regarding the true purpose of the trust, due to the fact that the trust must be for a charitable purpose which benefits the public;
• Trustee mismanagement;
• Failure to invest the trust funds with sound business judgment; and
• Violating federal, state, or local trusts laws, such as failing to report trust activity in order to avoid tax reporting.

Disputes could also arise when the trust’s beneficiaries disagree in terms of how the trust was constructed. Some examples of this include:

• Whether the trustor possessed legal capacity to create the trust in the first place;
• Whether the trustor was pressured or coerced to form the trust, such as being unduly influenced; and
• Whether the trustor was affected by fraud, such as the signature on the trust documents being forged.

What Documentation and Questions Should I Prepare Before Meeting With My Wills, Trusts, and Estates Lawyer? 

If you have questions regarding charitable giving, or are facing a dispute related to the subject, you should arrange for an initial consultation with an attorney. An initial legal consultation takes place before you decide to hire an attorney to represent you in your charitable giving legal matter. 

The attorney will use the consultation to determine if they can legally and competently represent you, based on the information that was provided by you in the consultation. It is an opportunity for both you and the attorney to exchange information and ask questions related to your ;legal case.

Initial consultations are generally free of charge, and will include discussions regarding fee structures, as well as legal facts regarding your case. It is important that you are honest when telling the attorney about your particular case, even when it makes you look bad. Lying about the facts or circumstances regarding your charitable giving dispute may lead to the attorney choosing not to represent you, criminal sanctions, or other civil penalties. 

Another reason to be honest is that legal consultations will always be confidential. This means that whatever you discuss with an attorney will not be discussed outside of the meeting room, or used against you in Court. The attorney cannot properly represent you and work to resolve your issue if they do not have all of the facts.

Prior to the consultation, prepare for the consultation by gathering all documents related to your charitable giving case. Bring every document you have for the attorney to review, as they will be able to properly determine which documents are relevant and which are not. 

Generally speaking, some examples of documents that you should bring with you may include any of the following:

• Contracts and any additional documents which exist to explain the contract;
• Property deeds or any documents relating to the property, such as an oil and gas lease; or 
• Other documents which provide evidence of damages, such as any warranties or letters created by the opposing party. 

In terms of charitable trusts specifically, you should bring any documentation related to your estate. This could include a last will and testament, a living will, tax documents, etc. 

Finally, you will want to use this opportunity to ask any questions you may have about charitable giving, and/or disputes you are facing involving a charitable trust. You may want to ask the attorney if your state maintains any estate laws that would affect your case. Additionally, you should ask questions about the attorney themselves. 

Some examples of appropriate questions would be:

• Legal field experience;
• Law school education and experiences;
• Experience with cases similar or related to your own;
• If any others, such as those who work with the attorney, will be handling your case; and
• The outcomes of similar cases they have handled.

When Do I Absolutely Need a Lawyer for Wills, Trusts, and Estates Issues? 

An estate attorney can help you through the process of setting up a charitable trust in such a way that you will experience as few issues as possible. If you are facing issues concerning a charitable trust, you should consult with a skilled and knowledgeable estate attorney in your area. 

An experienced and local attorney will be best suited to helping you understand and abide by your state’s specific laws regarding charitable trusts and giving. They can review the original trust documents, and file any necessary legal paperwork concerning the trust.

A lawyer in your area will understand the tax implications of estate planning. As such, they will guide you through the difficulties associated with drafting wills and trusts. They will also explain charitable giving and how best to draft charitable trusts. Finally, an attorney can also represent you in court, as needed.