What Is a Trust?

A trust can help you manage property during your lifetime, avoid or streamline probate, and control how your assets are distributed after death. Even if your estate cannot avoid probate, having certain assets in a trust, including real estate, can expedite the probate process.

Do I Need An Attorney for a Trust?

It’s not required to hire legal help to create a trust. You may draft this yourself or use an online service.
But guidance from an estate planning attorney can be incredibly valuable. This is especially true if you:

• Have a large or complex estate
• Own multiple properties
• Need guidance on choosing the right type of trust for your goals

While creating a trust without an attorney will save you money on legal fees, this route can cause issues for your beneficiaries later. In some cases, your trust may be invalidated if it contains unclear terms or was executed improperly. Working with an attorney helps ensure your trust complies with state laws and serves your beneficiaries how you intend.

Most attorneys offer a free consultation. They will discuss your case and their fee structure—whether they work on a flat fee or an hourly basis. Importantly, you can evaluate whether you communicate well with the lawyer before hiring them to help with your estate plan.

What Is a Trust?

Trusts involve an arrangement in which a grantor (settlor or trustor) transfers assets to a trustee to benefit a beneficiary. The trustee holds title to the trust’s assets. They do so subject to a strict fiduciary duty that obligates the trustee to manage the trust assets responsibly and productively, for the benefit of the trust beneficiary.

Trusts can replace or supplement wills and help manage property during life. A trust manages the distribution of a person’s property by transferring its benefits and obligations to different people. Trust administration can occur through an individual trustee, a corporate trustee, or even an attorney serving as a trustee.

A trust can replace or supplement a will and 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. A trust attorney can explain your legal options for setting up a trust under the applicable state laws.

Creation of a Trust

A trust 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. 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. Probate is the legal process of validating a will, settling debts, and distributing a person’s assets after death. 

Once a grantor places assets into the trust, they belong to the trust itself, not the trustee. The property remains subject to the rules and instructions of the trust contract.

Put another way, a trust is a right in property held in a fiduciary relationship by one party for the benefit of another. The trustee is who holds title to the trust property, and the beneficiary is who benefits from the trust.

Many confusing terms are used when discussing trusts and wills. Visit FindLaw’s Estate Planning Glossary and Terminology for a primer.

Example of a Trust

The terms of a trust vary widely, depending on the trustors who set them up. Consider this example:

A grantor transfers money to a bank account. At the trust’s creation, the bank serves as the trustee for the grantor’s dependents, who are minor children. The bank receives instructions to pay the children’s college expenses as needed. The bank carefully manages the money to ensure funds are available through the years.

The children cannot control the funds or use them for any purpose other than college expenses. The children graduate from college without having to worry about education expenses. The trust served its purpose. Any remaining trust funds will go to the children or wherever the terms of the trust direct.

Many types of trusts exist, but the basic types are revocable and irrevocable.

Revocable Trusts

Revocable trusts are created during the grantor’s lifetime and can be altered, modified, or revoked. Often called a living trust, these are trusts in which the grantor transfers the property’s title to a trust. The grantor typically serves as the initial trustee, but this is not a requirement. The grantor can remove the property from the trust during their lifetime.

If the grantor transfers the property’s ownership to a revocable trust during the grantor’s lifetime, the assets will not be subject to probate. Typically, a revocable trust converts into an irrevocable trust upon the grantor’s death.

Irrevocable Trust

A grantor cannot alter, change, modify, or revoke an irrevocable trust after its creation. Once a property transfers irrevocable trust, no one, including the trustor, can remove the property from the trust.

It is possible to purchase 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. 

Special Needs Trust

A special needs trust is a specialized trust that sets aside funds for a beneficiary with a disability. The goal is to strengthen financial security for individuals with disabilities. It can enhance quality of life without disqualifying them from need-based government benefits, such as Social Security benefits. These benefits include Supplemental Security Income.

Without a special needs trust, the individual who receives financial help from a loved one may no longer qualify for means-tested benefits.

Charitable Trust

Charitable Trusts are trusts that benefit a particular charity or the public in general. Typically, charitable trusts are established as part of an estate plan to reduce or avoid estate and gift taxes.

A charitable remainder trust (CRT) funded during the grantor’s lifetime can be a financial planning tool, providing the trustmaker with valuable lifetime benefits. In addition to the financial benefits, there is the intangible benefit of rewarding the trustmaker’s altruism. Charities usually honor donors who name the charity as the beneficiary of a CRT immediately.

Trusts can be intricate. It’s wise to consult an experienced trust attorney to understand a trust’s legal rights and obligations.

Other Estate Planning Documents

A trust is just one estate planning document in a comprehensive estate plan. Depending on your situation, you may also need other estate planning forms, such as:

• Last Will and Testament
• Financial Power of Attorney
• Health Care Directive and Living Will

These documents will help protect your assets, children, pets, and healthcare wishes.

How To Find an Estate Planning Lawyer

If you have a high-net-worth estate or complex assets, it’s wise to consult an attorney about your estate plan. An attorney can recommend tools and strategies that fit your situation and the needs of your beneficiaries. They can also work with other professionals on your team, including financial advisors and tax law accounts, to ensure your interests are served. 

FindLaw’s directory of estate planning attorneys can get you started. Because state law is relevant, your attorney should be licensed in your state. Enter your city or ZIP code for qualified legal professionals near you. Your search results will also show ratings and contact information.