A trust is a legal entity that holds title to and manages assets for an intended beneficiary. A Living trust is distinguishable from other trusts in that you, as the grantor, can make changes to the trust or revoke it entirely during your lifetime. You can also act as the initial trustee of your living trust. Living trusts are most often used to avoid the probate process that comes along with passing property through a will. Because assets are owned by the trust, and not by you, they pass by the terms of the trust upon your death, making probate unnecessary. Trusts are complicated documents and estate planning attorneys can help you navigate through the legal nuances. In order to pass through the trust and avoid probate, assets must be re-titled into the name of the trust. For instance, if you want to place your home in the trust, you must change the deed so that the trust is named as owner. Once the deed is changed, it should be recorded with the registrar of deeds, and is subject to the same fees as any real estate transaction. These fees vary by state. You can check with your local registrar of deeds for your state’s fees associated with a deed transfer. Whether or not you choose to hire an attorney to draft your living trust, you will be responsible for the expense of titling assets to the trust. A living trust is an estate planning document created during one’s lifetime. A revocable living trust goes into effect during one’s lifetime and provides a way to manage one’s assets during his/her lifetime and to dispose of assets after they pass away. There are many reasons a living trust is preferable to a last will and testament. For example, when you create a living trust, you can avoid the time and expense associated with probate. While the estate’s assets are in probate, they may be frozen – a living trust avoids this as well. Individuals also choose to make a living trust to minimize tax consequences and for privacy concerns.
Types of Trusts In Utah
A trust is a legal document that can be created during a person’s lifetime and survive the person’s death. A trust can also be created by a will and formed after death. Common types of trusts are outlined in this article. Once assets are put into the trust they belong to the trust itself (such as a bank account), not the trustee (person). They remain subject to the rules and instructions of the trust contract. In essence, a trust is a right to money or property, which is held in a “fiduciary” relationship by one person or bank for the benefit of another. The trustee is the one who holds title to the trust property, and the beneficiary is the person who receives the benefits of the trust. While there are a number of different types of trusts, the basic types are revocable and irrevocable.
Revocable Trusts
Revocable trusts are created during the lifetime of the trust-maker and can be altered, changed, modified or revoked entirely. Often called a living trust, these are trusts in which the trust-maker:
• Transfers the title of a property to a trust
• Serves as the initial trustee
• Has the ability to remove the property from the trust during his or her lifetime\
Revocable trusts are extremely helpful in avoiding probate. If ownership of assets is transferred to a revocable trust during the lifetime of the trust-maker so that it is owned by the trust at the time of the trust-maker’s death, the assets will not be subject to probate. Although useful to avoid probate, a revocable trust is not an asset protection technique as assets transferred to the trust during the trust-maker’s lifetime will remain available to the trust-maker’s creditors. It does make it more somewhat more difficult for creditors to access these assets since the creditor must petition a court for an order to enable the creditor to get to the assets held in the trust. Typically, a revocable trust evolves into an irrevocable trust upon the death of the trust-maker.
Irrevocable Trust
An irrevocable trust is one that cannot be altered, changed, modified or revoked after its creation. Once a property is transferred to an irrevocable trust, no one, including the trust maker, can take the property out of the trust. It is possible to purchase survivorship life insurance, the benefits of which can be held by an irrevocable trust. This type of survivorship life insurance can be used for estate tax planning purposes in large estates; however, survivorship life insurance held in an irrevocable trust can have serious negative consequences.
Asset Protection Trust
An asset protection trust is a type of trust that is designed to protect a person’s assets from claims of future creditors. These types of trusts are often set up in countries outside of the United States, although the assets do not always need to be transferred to the foreign jurisdiction. The purpose of an asset protection trust is to insulate assets from creditor attack. These trusts are normally structured so that they are irrevocable for a term of years and so that the trust-maker is not a current beneficiary. An asset protection trust is normally structured so that the undistributed assets of the trust are returned to the trust-maker upon the termination of the trust provided there is no current risk of creditor attack, thus permitting the trust-maker to regain complete control over the formerly protected assets.
Charitable Trust
Charitable trusts are trusts which benefit a particular charity or the public in general. Typically charitable trusts are established as part of an estate plan to lower or avoid the imposition of estate and gift tax. A charitable remainder trust (CRT) funded during the grantor’s lifetime can be a financial planning tool, providing the trust-maker with valuable lifetime benefits. In addition to the financial benefits, there is the intangible benefit of rewarding the trust-maker’s altruism as charities usually immediately honor the donors who have named the charity as the beneficiary of a CRT.
Constructive Trust
A constructive trust is an implied trust. An implied trust is established by a court and is determined by certain facts and circumstances. The court may decide that, even though there was never a formal declaration of a trust, there was an intention on the part of the property owner that the property is used for a particular purpose or go to a particular person. While a person may take legal title to a property, equitable considerations sometimes require that the equitable title of such property really belongs to someone else.
Special Needs Trust
A special needs trust is one that is set up for a person who receives government benefits so as not to disqualify the beneficiary from such government benefits. This is completely legal and permitted under the Social Security rules provided that the disabled beneficiary cannot control the amount or the frequency of trust distributions and cannot revoke the trust. Ordinarily, when a person is receiving government benefits, an inheritance or receipt of a gift could reduce or eliminate the person’s eligibility for such benefits. By establishing a trust, which provides for luxuries or other benefits which otherwise could not be obtained by the beneficiary, the beneficiary can obtain the benefits from the trust without defeating his or her eligibility for government benefits. Usually, a special needs trust has a provision that terminates the trust in the event that it could be used to make the beneficiary ineligible for government benefits. Special needs have a specific legal definition and are defined as the requisites for maintaining the comfort and happiness of a disabled person when such requisites are not being provided by any public or private agency. Special needs can include medical and dental expenses, equipment, education, treatment, rehabilitation, eyeglasses, transportation (including vehicle purchase), maintenance, insurance (including payment of premiums of insurance on the life of the beneficiary), essential dietary needs, spending money, electronic and computer equipment, vacations, athletic contests, movies, trips, money with which to purchase gifts, payments for a companion, and other items to enhance self-esteem. The list is quite extensive. Parents of a disabled child can establish a special needs trust as part of their general estate plan and not worry that their child will be prevented from receiving benefits when they are not there to care for the child. Disabled persons who expect an inheritance or other large sum of money may establish a special needs trust themselves, provided that another person or entity is named as trustee.
Spendthrift Trust
A trust that is established for a beneficiary that does not allow the beneficiary to sell or pledge away interests in the trust is known as a spendthrift trust. It is protected from the beneficiaries’ creditors, until such time as the trust property is distributed out of the trust and given to the beneficiaries.
Tax By-Pass Trust
A tax by-pass trust is a type of trust that is created to allow one spouse to leave money to the other while limiting the amount of federal estate tax that would be payable on the death of the second spouse. While assets can pass to a spouse tax-free, when the surviving spouse dies, the remaining assets over and above the exempt limit would be taxable to the children of the couple, potentially at a rate of 55 percent. A tax by-pass trust avoids this situation and saves the children perhaps hundreds of thousands of dollars in federal taxes, depending upon the value of the estate.
Totten Trust
A Totten trust is one that is created during the lifetime of the grantor by depositing money into an account at a financial institution in his or her name as the trustee for another. This is a type of revocable trust in which the gift is not completed until the grantor’s death or an unequivocal act reflecting the gift during the grantor’s lifetime. An individual or an entity can be named as the beneficiary. Upon death, Totten trust assets avoid probate. A Totten trust is used primarily with accounts and securities in financial institutions such as savings accounts, bank accounts, and certificates of deposit. A Totten trust cannot be used with real property. It provides a safer method to pass assets on to family than using joint ownership. To create a Totten trust, the title on the account should include identifying language, such as “In Trust For,” “Payable on Death To,” “As Trustee For,” or the identifying initials for each, “IFF,” “POD,” “ATF.” If this language is not included, the beneficiary may not be identifiable. A Totten trust has been called a “poor man’s” trust because a written trust document is typically not involved and it often costs the trust maker nothing to establish.
Drawbacks of a Living Trust
A living trust does have unique problems and complications. Most people think the benefits outweigh the drawbacks, but before you make a living trust, you should be aware of them. Setting up a living trust isn’t difficult or expensive, but it requires some paperwork. The first step is to create and print out a trust document, which you should sign in front of a notary public. That’s no harder than making a will. There is, however, one more essential step to making a living trust effective: You must make sure that ownership of all the property you listed in the trust document is legally transferred to you as trustee of the trust. If an item of property doesn’t have a title (ownership) document, you can simply list it on a document called an Assignment of Property. Most books, furniture, electronics, jewelry, appliances, musical instruments and many other kinds of property can be handled this way. But if an item has a title document; real estate, stocks, mutual funds, bonds, money market accounts or vehicles, for example; you must change the title document to show that the property is held in trust. For example, if you want to put your house into your living trust, you must prepare and sign a new deed, transferring ownership to you as trustee of the trust.
Record Keeping
After a revocable living trust is created, little day-to-day record keeping is required. No separate income tax records or returns are necessary as long as you are both the grantor and the trustee. Income from property held in the living trust is reported on your personal income tax return. You must keep written records whenever you transfer property to or from the trust, which isn’t difficult unless you transfer a lot of property in and out of the trust.
Transfer Taxes
In most states, transfers of real estate to revocable living trusts are exempt from transfer taxes that are usually imposed on real estate transfers. But in a few states, transferring real estate to your living trust could trigger a tax.
Difficulty Refinancing Trust Property
Because legal title to trust real estate is held in the name of the trustee, a few banks and title companies may balk if you want to refinance it. They should be sufficiently reassured if you show them a copy of your trust document, which specifically gives you, as trustee, the power to borrow against trust property. In the unlikely event you can’t convince an uncooperative lender to deal with you in your capacity as trustee, you’ll have to find another lender (which shouldn’t be hard) or transfer the property out of the trust and back into your name. Later, after you refinance, you can transfer it back into the living trust. Most people don’t worry that after their death, creditors will try to collect large debts from property in the estate. In most situations, the surviving relatives simply pay the valid debts, such as outstanding bills, taxes and last illness and funeral expenses. But if you are concerned about the possibility of large claims, you may want to let your property go through probate instead of a living trust. If your property goes through probate, creditors have only a certain amount of time to file claims against your estate. A creditor who was properly notified of the probate court proceeding cannot file a claim after the period — about six months, in most states expires.
Benefits of a Revocable Living Trust
A living revocable trust serves as far more than just where assets are to go upon your death and it does that in an efficient way. Here are some of the reasons a revocable trust should be part of your estate plan.
1. Revocable trusts are changeable and flexible: Revocable living trusts allow you to make amendments at your own discretion. That can prove invaluable if your circumstances change or if you just aren’t sure who you want to name as your beneficiaries. That flexibility also makes these trusts a popular option if you are starting your estate planning young.
2. Revocable trusts cover your assets before your death: As outlined above, a living trust covers grantors during three phases of life. If you become incapacitated, your trustee can take over and manage your affairs. (Don’t worry: This person has a fiduciary duty to act in your best interest.) This happens automatically. You do not need to go through court proceedings or appointed conservators. Revocable living trusts also account for guardianship. You can stipulate living situations and spending habits for minor children in the terms of your trust.
3. Revocable trusts avoid probate: If you have a will when you die, your assets will go through probate. That is a court proceeding where your assets are distributed per your stipulations. Probate is a relatively slow process that that can take up to several months. If you own property in more than one state, your beneficiaries may have to go through multiple probates. The costs of going through probate can also cut down what your beneficiaries inherit. With revocable living trusts, probate is not necessary. Your successor trustee will be able to pass your assets on to your beneficiaries without the need to wait for a court order. That usually means a quicker and more affordable process for your beneficiaries.
4. Revocable trusts incur less cost and hassle down the line: Drafting a living trust usually requires more funds and effort up front because it’s a more complex legal document than a regular trust or will. So that means you will need to spend some time and money to properly set up and maintain your trust. However, that work can save you the headache and higher expenses associated with probate. Living trusts also tend to hold up better if someone contests a provision, potentially saving more money and time.
5. Revocable trusts provide privacy: After your death, wills and their requisite transactions enter into public record. Anyone can see what stipulations are in your will, who your beneficiaries are and what each beneficiary is inheriting. Estates in a living trust are distributed in private. No one can search the public records to see where your assets went. This protects the privacy of your assets as well as your beneficiaries.
6. Assets in revocable trusts receive FDIC protection: The FDIC (Federal Deposit Insurance Corporation) typically protects money in a bank account up to $250,000. However, that coverage amount goes up with revocable living trusts. According to the FDIC, the owner of a revocable trust account receives insurance of up to $250,000 per each beneficiary. The maximum insured amount you can have is $1,250,000, equal to $250,000 for the owner and each of four beneficiaries.
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