A Trust is a legal fiduciary arrangement that allows you to set up your assets to be held and managed by a third party. This party is known as a Trustee, and the person or firm you appoint to this role will be responsible for ensuring that your estate is handled in the manner you’ve outlined. Despite what many people think, Trusts can be beneficial for all sized-estates, not just very large ones. There is a common misconception that an Estate Planning Trust is only suitable for the extremely wealthy. But the reality is, there are many benefits to a Trust, including:
• Avoiding probate court so Beneficiaries can receive assets sooner
• Privacy
• Protection
• Reduced or eliminated estate and gift taxes
• The ability to better-control future wealth by establishing conditions for asset-distribution
What is the Purpose of a Trust?
There are several purposes of an Estate Planning Trust, but one of the more common reasons people choose to use them is to better-ensure their assets are handled exactly as they wish, from the moment the Trust goes into effect, until long after passing. They can also be used as a means to manage tax consequences on an estate. And, they’re a way to potentially protect your wealth while still qualifying for Medicaid in your later years. Trusts are often used in cases where someone wants or needs to set up financial care for young children or long-term planning and care for dependents with disabilities.
Who Should Have a Trust?
Trusts aren’t necessarily the best solution for everyone. There are several reasons a Trust might make sense, but that doesn’t mean absolutely everybody needs one. A Trust may be beneficial for those in specific situations, such as:
• You own a home or other property, particularly if it’s out of state
• You have $200k+ in assets
• You wish to keep your assets private
• You are hoping to simplify the probate process for your loved ones after you pass
• You have a taxable estate – keep in mind the qualifying value that deems an estate “taxable” will differ from state to state
• You want to set up stipulations on inheritances – for example, awarding a dollar amount for certain life events such as graduating college, getting married, etc.
Types of Trusts
As noted, there are several types of Trusts, each with its own nuance and purpose. Before establishing a Trust, be sure to have a clear idea of your goals so you can use the type of Trust best-suited to accomplish them.
Living Trust
A Living Trust is created during your lifetime and it designates a trustee who will manage assets for your Beneficiary or Beneficiaries after your passing.
Revocable Living Trusts
A Revocable Living Trust is created during your lifetime and can be altered or revoked while you’re alive. It is used to avoid probate, but while you’re alive, it’s not an ironclad technique for asset protection. Any assets in your Revocable Living Trust will still be available to creditors during your lifetime, although it will be more difficult for them to gain access.
Irrevocable Trusts
An Irrevocable Trust means you cannot change or alter anything in the Trust once it’s established. You have legally removed any rights to ownership to anything you put in the Trust. In some cases, an Irrevocable Trust may be used as a way to protect assets from creditors or bypass estate tax, as you will have effectively removed yourself as owner for any of the assets inside the Trust. Irrevocable Trusts can be beneficial for those in professions that are vulnerable to lawsuits, such as attorneys or doctors.
Joint Trusts
A Joint Trust is a Trust established for two people, like husband and wife. While both parties are alive, they maintain total control over any and all assets that are in the Trust. They can change the Trust at any time, and after one partner passes, the surviving partner becomes Trustee.
Testamentary Trusts
A Testamentary Trust is a Trust that’s created within a Will, and it only goes into effect upon your passing. Also known as a “Trust Under Will” or a “Will Trust,” the Last Will and Testament instructs how the actual Trust should be established. Because the Trust isn’t truly created until after you pass, it’s not considered a Living Trust. It’s important to note that this option results in the Will going through probate. And, there’s also diminished privacy protection that some Trusts offer, as the Trust terms are described in the Will.
Revocable vs. Irrevocable Trust
A Revocable Trust can be changed at any point during your life as long as you’re of sound mind. By contrast, an Irrevocable Trust is the exact opposite. It cannot be changed, and furthermore, you no longer own assets once you place them into an Irrevocable Trust. It may seem like an Irrevocable Trust is never a good idea, but under certain circumstances, it actually can be beneficial. For example, if you are at risk for lawsuits due to your profession, an Irrevocable Trust can protect and preserve your assets from judgments, creditors and liens.
What to Add to a Trust
There are certain assets that are appropriate to fund your Trust. To accomplish this part of the process, you will retitle assets with the Trust as the owner. The types of assets a Trust can hold include:
• Home(s) or other real estate
• Tangible property like jewelry, antiques, collectibles, vehicles, etc.
• Retirement accounts – naming the Trust as beneficiary
• Brokerage accounts and non-retirement investments can be retitled in your Trust’s name
• Cash accounts, including savings and checking accounts, money markets and CDs – note that transferring CDs needs to be handled carefully so you’re not penalized for an early withdrawal of funds during the retitling process
• Large assets
• Business interests
• Stocks or bonds that are held in certificate form
• Non-qualified annuities
How to Name a Trust
Choosing a name for your Trust is the easy, but important part. Most people name a Trust something logical and representative of their family. This makes sense, as it makes it easy to remember, so when you’re renaming all the assets the Trust will hold, it’s a logical process. Your family name (and possibly the date the Trust is established), along with the words “Family Trust” at the end, is a simple formula that’s commonly used. Using this format or something similar to it leaves very little room for any misinterpretation as to what the Trust document is. Date can be used as an organizational tool, or it can be left off entirely.
How to Fund a Trust
Once you have created and named your Trust, the next step is funding your Trust. Funding a Trust simply means you are moving assets into the Trust, making the Trust the new owner. Keep in mind, your Trust is a vehicle designed to hold and protect your assets. Until you put said assets into it, it really holds no value or has any purpose. There is a pretty straightforward process to move appropriate assets into a Trust. Much of it just involves renaming an asset to be Trust-owned. Individual assets can have slightly different processes, so be sure to check each one. For example, to put real estate into your Trust, you will need the deed, and if you have a mortgage on the property, it’s possible, but not likely, that you might need permission from your lender. If you’re transferring bank accounts into your Trust, you should check with your bank for the specifics on paperwork.
Differences Between a Will and a Trust
The biggest difference between a Trust and a Will is that a Trust goes into effect as soon as it’s created, whereas a Will only becomes effective after you pass. There are also tax implications specific to each, and Trusts can remain private and avoid probate, whereas the process of passing property per the terms of a Will will be both public and go through probate.
What is a Trust Fund?
A Trust Fund is an effective tool that’s often used in Estate Planning wherein a Grantor (you) sets up a plan that will ensure financial stability and security of a Beneficiary, often a child or grandchild. A Trust Fund can hold investments, cash, real estate and other assets to be distributed in the future.
What is a Trustee?
A Trustee is the person you name to be responsible for your Trust assets. In essence, the Trustee is the legal owner of everything in the Trust. He or she is charged with administering (distributing) assets or property for the benefit of your named Beneficiaries, as defined in the Trust. The Trustee is also responsible for handling the Trust’s tax filings.
Can a Trustee Be Removed From a Trust?
A Trustee can be removed from a Trust under certain conditions. For example, if they have not lived up to the responsibilities outlined in the Trust, if they no longer wish to perform or are incapable of the duties, or as specified in the Trust. You can outline ways to remove a Trustee, such as stating all Beneficiaries must agree they want to change who is appointed.
Can a Trustee Use Money From the Trust?
Trustees can only use the money or assets in the Trust to provide for Beneficiaries or to accomplish other Trust-related responsibilities. A Trustee cannot use Trust money for personal use or benefit.
What Is An A-B Trust?
An A-B Trust is used to minimize estate taxes. Also known as a Credit Shelter Trust or a Bypass Trust, it’s a Joint Trust that a husband and wife create together. A-B Trusts will divide into two separate Trusts once the first partner passes. At that time, Trust A becomes what’s referred to as the Survivor’s Trust, and Trust B is the Decedent’s Trust. This type of Trust can be tax beneficial for those with very large estates ($11.58m or larger) to avoid heavy estate taxes for Beneficiaries. A-B Trusts allow a surviving spouse to use and benefit from Trust assets, but prevents them from changing any distribution plans. They’re often used in circumstances with blended families or remarriages so that surviving spouses cannot leave assets to only their own children.
Can I Put My Vehicles In My Trust?
You can transfer cars to your Trust, but one concern is insurance. Some insurance companies don’t have a great system for handling Trusts. That could mean you would need to name the Trust, Trustees and/or Beneficiaries as “Additional Insured,” or get special riders from your insurance carrier, which can be a hassle. Because of this, some people choose not to put their personal vehicles in their Trust. Instead, they rely on the Pour-Over Will to say any vehicles go into their Trust at death. Letting assets pass under the Will might mean the Will has to go through probate, but the values of the cars are usually low enough that it’s just a simplified probate process. Note that this is true for daily driver cars, but collector or valuable cars might be different. Setting up your Trust is beneficial on many levels. It’s one of several layers of your Estate Plan, and it’s yet another safeguard against things happening against your wishes once you no longer have a say. Providing security, passing on your hard-earned personal wealth and assets, and setting up a tax-beneficial estate is one of the best gifts you can leave your heirs. Knowing and trusting that they will be taken care of, even when you’re not there to do it, is priceless.
What’s So Bad About Probate?
• It can be expensive. Legal fees, executor fees, and other costs must be paid before your assets can be fully distributed to your heirs. If you own property in other states, your family could face multiple probates, each one according to the laws in that state. These costs can vary widely; it would be a good idea to find out what they are now.
• It takes time, usually nine months to two years, but often longer. During part of this time, assets are usually frozen so an accurate inventory can be taken. Nothing can be distributed or sold without court and/or executor approval. If your family needs money to live on, they must request a living allowance, which may be denied.
• Your family has no privacy. Probate is a public process, so any “interested party” can see what you owned, whom you owed, who will receive your assets, and when they will receive them. The process “invites” disgruntled heirs to contest your will and can expose your family to unscrupulous solicitors.
• Your family has no control. The probate process determines how much it will cost, how long it will take, and what information is made public.
Doesn’t Joint Ownership Avoid Probate?
Not really. Using joint ownership usually just postpones probate. With most jointly owned assets, when one owner dies, full ownership does transfer to the surviving owner without probate. But if that owner dies without adding a new joint owner, or if both owners die at the same time, the asset must be probated before it can go to the heirs. Watch out for other problems. When you add a co-owner, you lose control. Your chances of being named in a lawsuit and of losing the asset to a creditor are increased. There could be gift and/or income tax problems. And since a will does not control most jointly owned assets, you could disinherit your family. With some assets, especially real estate, all owners must sign to sell or refinance. So if a co-owner becomes incapacitated, you could find yourself with a new “co-owner”—the court—even if the incapacitated owner is your spouse.
A durable power of attorney lets you name someone to manage your financial affairs if you are unable to do so. However, many financial institutions will not honor one unless it is on their form. And, if accepted, it may work too well, giving someone a “blank check” to do whatever he/she wants with your assets. It can be very effective when used with a living trust, but risky when used alone.
Living Trust Benefits
• Avoids probate at death, including multiple probates if you own property in other states
• Prevents court control of assets at incapacity
• Brings all of your assets together under one plan
• Provides maximum privacy
• Quicker distribution of assets to beneficiaries
• Assets can remain in trust until you want beneficiaries to inherit
• Can reduce or eliminate estate taxes
• Inexpensive, easy to set up and maintain
• Can be changed or cancelled at any time
• Difficult to contest
• Prevents court control of minors’ inheritances
• Can protect dependents with special needs
• Prevents unintentional disinheriting and other problems of joint ownership
• Professional management with corporate trustee
• Peace of mind
Free Initial Consultation with Lawyer
It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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