Trust Law

Trusts can help manage your property and assets during your life and ensure a smooth transition of affairs after death.

A trust can replace or supplement a will, as well as help manage property during your life. A trust manages the distribution of a person’s property by transferring its benefits and obligations to different people.

Trusts can help manage your property and assets during your life and ensure a smooth transition for your loved ones after your death.

A trust is an important legal document that can serve several purposes. A trust can replace or supplement a last will and testament and can help manage property during your life. A trust manages the distribution of a person’s property by transferring its benefits and obligations to different people.

There are many reasons to create a trust. These reasons include reducing or eliminating estate tax or distributing money to trust beneficiaries. As a planning tool, a trust is a popular choice for many people when creating an estate plan.

A trust can reduce the taxable estate’s value and any estate tax consequences. A trust can also help expedite the estate administration process.

Trusts are created under state law. It’s helpful to understand some other practical information about trusts, such as:

• How to set up a living trust
• Choosing a trustee
• Tax implications of trusts, including estate tax consequences
• When it makes sense to hire an estate planning attorney

This article will review the general trust process and the types of trusts you may want to consider.

Why Would I Want a Trust?

A trust allows you to specify conditions before someone else receives trust benefits. A trust also spreads the payment of benefits over a period of time instead of making a single gift.

These are some of the primary reasons why people prefer to include a trust in their will. It is a great way to reinforce their preferences and goals after death.

Creation of a Trust

Typically, a trust grantor will set up a legal arrangement. This arrangement allows a person ("trustee") to manage and administer the trust property. The money in the trust and the management of it are all for the good of a beneficiary.

The basics of trust creation are relatively simple. To create a trust, the property owner (called the "trustor," "grantor," or "settlor") transfers legal ownership to a family member, professional, or institution.

This person is called the trustee. The trustee manages the property for the benefit of another person (called the beneficiary). The trustee often receives financial compensation for their management role.

Trusts: Relationship Among the Creator, Trustee, and Beneficiaries

Trusts create a fiduciary relationship between the trustee and the beneficiary. Fiduciary means a relationship involving trust. When dealing with the trust property, the trustee must act solely in the beneficiaries’ best interests.

If a trustee does not live up to this duty, the trustee is legally accountable to the beneficiaries for any damage to their interests.

A trustee may be compensated for the management of the trust. Regardless of whether a trustee receives payment, they must act in the beneficiaries’ best interests.

Can I Create a Trust and Be the Trustee?

The property owner or "grantor" may act as the trustee for their living trust. This allows you to keep ownership of your property instead of transferring the title to someone else.

In short, this pauses the trust, since it will only be effective once you allow the property to transfer. However, you must still act in a fiduciary capacity for the trust and protect its assets.

A grantor can also put their name down as one of the trust beneficiaries or among several beneficiaries. In any trust agreement, however, the trust becomes effective once the grantor transfers the property to the trustee.

Naming a Successor Trustee

As stated above, grantors may name themselves as trustees of a living trust only during their lifetime. They should name a successor trustee to step in if they die or become disabled. The obligations created by these different roles are essential to consider when establishing a trust.

At the grantor’s death, the successor trustee must distribute the trust’s assets according to directions in the trust document. In many states, state law requires certain people to receive notification of the grantor’s death.

Example of a Trust in Action

Suppose the grantor of a trust transfers money to a bank account. At the trust’s creation, the bank serves as the trust company, or trustee, for the grantor’s dependents, who are minor children.

The bank receives instructions to pay the children’s college expenses as needed. Over the years, the bank carefully manages the money to ensure funds are available.

The bank is performing its fiduciary duty correctly. The children do not have control of the funds and cannot use the money for any other purposes except college expenses.

Years later, the children have graduated college, and they never had to worry about expenses. The trust’s purposes are complete. Any money left in the trust will go to the children or wherever the terms of the trust direct.

Types of Trusts

A trust can be a vital tool for anyone looking for help managing money and property during their lifetime. A trust can also be an excellent tool for planning what will happen to your money and property when you die. It allows your family to inherit from you without going through the long and expensive probate process.

There are many different kinds of trusts you can create. Generally, all trusts can be separated into two groups:

• Revocable trusts can be changed or revoked at any time by their creator or "grantor."
• Irrevocable trusts cannot be changed or revoked by the creator or grantor at any time for any reason.

The key difference — that one can be revoked and the other cannot — is apparent in these types of trusts’ names. However, the reasons for selecting one or the other have more to do with details about ownership and control.

For example, a grantor cannot keep any incidents of ownership over a life insurance policy after a transfer into an irrevocable trust. That means they give up control, such as the right to change beneficiaries. If the grantor relinquishes control of the policy, and it is transferred at least three years before their death, the policy will not be counted as part of their estate for tax purposes after they die.

Testamentary Trusts vs. Living Trusts

In addition to the revocable and irrevocable distinction, trusts fall into two broad categories:

• Testamentary trusts: Testamentary trusts transfer property into the trust only after the grantor’s death.
• Living trusts (sometimes called inter vivos trusts): Living trusts are created during the grantor’s life but may be designed to continue after their death.

You may hear about trusts combining these terms, such as a revocable living trust. The details of different types of trusts are explained in more depth below.

Testamentary Trusts

The testamentary trust is not automatically created at death. It is commonly specified in a will. Because it’s a provision in a will, the trust property must go through probate before the trust’s creation.

Example of a Testamentary Trust

A parent named Taylor writes a will. The will specifies that Taylor’s assets should be transferred to a trustee or co-trustees upon death.

The trustee manages the assets to benefit Taylor’s children until they reach a certain age. Taylor could set the age or give the trustee discretion to distribute assets when the trustee believes the children will be ready to control the assets independently. The trust ends once the children control the assets.

Living Trusts

Living trusts are created during the lifetime of the person who set up the trust — usually called the grantor or settlor.

The most common reason for a living trust is to avoid the probate process required to administer a will. A living trust is a good option for a parent who:

• Wants to provide some income and security for their child
• Doesn’t believe the child could handle the full amount of property responsibly

Aside from protecting a minor, a living trust can also help individuals reduce taxes and regulate the use of their assets. This can be important if the settlor ever becomes incapacitated.

A living trust may help avoid probate if all assets are subject to probate transfer into the trust before death. A living trust may be either revocable or irrevocable.

Revocable Living Trust

A revocable trust can be changed or removed. It’s often called a "living trust." These are trusts where the person making the trust:

• Transfers title of property into the trust
• Serves as the initial trustee
• Has the ability to remove, change, modify, alter, or entirely revoke the trust during their lifetime

The grantor of a revocable living trust can change or revoke the terms of the trust any time after the trust commences. On the other hand, the grantor of an irrevocable trust permanently relinquishes the right to make changes after the trust’s creation. Once created, it can’t be altered, changed, modified, or revoked.

A revocable trust typically supplements a will or is used as a way to name a person to manage the grantor’s affairs should they become incapacitated. Even a revocable living trust usually specifies that it is irrevocable at the grantor’s death.

Trusts of this sort are helpful because the trust owns the property rather than the person making the trust. This is helpful because the property held in trust is not subject to probate when the person dies. The property the trust owns is not part of the decedent’s estate.

Living Trusts and Debts

Revocable trusts may be vulnerable to claims by the grantor’s creditors. To access these assets, the creditor must petition the court for an order to access the trust’s assets.

The grantor’s ability to control the trust assets during their lifetime makes the assets in a revocable trust vulnerable to creditors. Upon death, a revocable trust becomes irrevocable. Thus, it can serve as asset protection upon their death.

Tax Benefits of Trusts

Trusts can provide various tax benefits. A trust can lower your overall tax liability in some circumstances. Most trusts come with various tax incentives. At the creation of certain trusts, they have a tax identification number and must pay any income tax owed.

AB Trust and Marital Bypass Trust

Another type of trust with tax benefits is the AB or marital bypass trust. The AB trust is only available to married couples. This type of trust allows a couple to maximize their federal estate tax exemption.

Upon one spouse’s death, their property goes into an irrevocable trust (Trust A), and the surviving spouse’s share goes into Trust B.

The irrevocable trust can be used for the surviving spouse’s benefit, even though they don’t own the property.

Once the surviving spouse dies, the couple’s children or other beneficiaries can receive the property from Trust A and Trust B without paying taxes.

Charitable Trusts

Another common trust is a charitable remainder trust that provides tax benefits. In a charitable remainder trust, a settlor sets up a trust. The settlor puts the property they want to give to charity into the trust. The IRS must approve.

The charity serves as the trustee and pays a portion of the accumulated income of the trust funds back to the grantor or other named person. The trust terminates upon the grantor’s death, and the property donated will go to the charity.

The money and property in a charitable trust are excluded when determining the deceased person’s estate tax. This is a significant benefit to the grantor’s heirs.

Transferring Assets

Irrevocable trusts transfer assets before death and thus avoid probate. However, revocable trusts are more popular as a means of avoiding the probate process due to their flexibility.

If a person transfers all their assets to a revocable trust, they don’t own any assets at their death. Therefore, their assets don’t have to be transferred through probate.

Even though the trust’s grantor died, the trust did not die. The trust assets avoid probate. However, trusts avoid probate only if the deceased person’s probate assets were transferred into the trust before death. If a grantor fails to fund the trust, those assets that would have been included in the trust are included in their probate estate.

When a decedent designates beneficiaries for certain assets during their life, it can also reduce the probate estate. Common assets transferred by beneficiary designations include:

• Retirement accounts
• Bank accounts with POD or TOD designations
• Annuities
• Life insurance

When some assets remain in the probate estate, most revocable living trusts are accompanied by a pour-over will. A pour-over will provides that at death, all of the grantors’ assets not already in the trust should be moved into it. The trustee then handles their distribution.

Example of Transferring Assets to a Trust

Tan sets up a revocable trust. The trust document states that Tan’s assets should be distributed equally to Tan’s children at Tan’s death. Tan transfers a primary residence in New York to the trust but does not transfer the Florida rental real estate property Tan owns.

At Tan’s death, the trust can distribute the primary residence outside the probate process. However, the rental real estate will have to be probated because it was not subject to the trust.

Based on the will, the probate court will order the rental real estate to be transferred to the trustee. Then, the trustee will distribute it according to the terms of the trust.

Trusts Can Be Part of a Comprehensive Estate Plan

The best way to determine whether a trust should be part of your estate plan is to consult an estate planning attorney. Depending on the circumstances, you may want to consult with an attorney specializing in elder law. A professional can review your situation and determine whether you would benefit from a trust. If so, they can help you decide which type would work best.

For example, you may create a special needs trust. This type of trust can protect a loved one’s ability to receive public benefits such as Social Security or Medicaid. Or you may need to create a trust as part of the tax planning process to eliminate the need to file an estate tax return at death.

Other documents to consider in addition to a will and trusts:

• Living will: a type of legal document that allows you to explain your preferred health care and end-of-life decisions in case you become incapacitated
• Power of attorney: a legal document that allows an agent or attorney-in-fact to make decisions on your behalf

Learn More About Trusts from an Attorney

Trusts have important tax, governmental assistance, probate, and personal ramifications. It’s best to consult an experienced trust attorney. A legal professional can help with any stage of the planning process, from preliminary discussions to the execution of trust documents.

A trust involves a lot of paperwork and can be challenging to set up correctly without legal guidance. However, there are other estate planning documents you can DIY from home. If you have a simple estate, a guided, state-specific estate plan may be the right step.