WHY SHOULD YOU SET UP A TRUST TO
PROTECT YOUR PROPERTY AND FAMILY?
A legal mechanism called a 'trust' is an amazingly powerful and versatile device. If carefully written by a skilled attorney, a wide variety of goals can be accomplished for the management of money, property, a business, personal items, etc.
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Like most legal work, attorneys charge a wide variety of prices to draft and establish a trust. I get advertisements in the mail (Val-Pak) where I live for a law firm advertising they will create a trust for $1,999.
I establish customized trusts to protect your interests for $799. That will include the legal work and documents to transfer all property you choose into the trust, arrange and organize the assets in the trust, etc., and instructions and explanation to the Trustee. I can set this up for you anywhere, but it is better to have a personal meeting when we properly execute (sign) the document before witnesses, a notary public, etc.
Like a will, writing the document is only half the battle. Making sure it is signed, executed and implemented correctly is extremely important. You can have a perfect document from some non-attorney source, and then entirely bungle the project when it comes to how the document is signed, executed, and put into use.
Most people understand the need to prepare and execute a Will to specifically express one’s wishes as to who shall receive their assets on their passing. A properly prepared Will also allows the appointment of a trusted agent to carry out the instructions in the Will rather than having a judge designate a random, unknown party to do so.
However, many people do not understand that a simple Will does not solve all the problems of dealing with assets to be transferred upon a death. Privacy, taxes, flexibility, asset protection from creditors, uninterrupted finances, and ease of administration are important issues. Control of medical care if one becomes incapacitated can be critical.
A properly drafted and funded Trust can solve several of these issues:
First: A trust is a private instrument. It does not need to be revealed to anyone. Usually, the most that must be disclosed is the title page to document who is to act as the Trustee. The assets held by the Trust do not need to be disclosed. A Will, on the other hand, must become a public document in the courthouse during probate. An inventory of all of the decedent's property may have to be reported to the Commissioner of Accounts and publicly known.
Trusts allow great flexibility in carrying out your wishes. For instance, you can specify in the trust exactly how you'd like your money to be spent, right down to what kind of nursing facility you'd want to be in.
In addition, actions by trustees may be accepted more readily by some financial institutions than actions by agents under durable powers of attorney (durable means it continues after you become incapacitated). Some financial institutions honor only their own durable powers of attorney forms, for example, so always check their requirements.
How does it work? A trust allows you to transfer selected property or money, whatever you decide, to a TRUSTEE. That Trustee then has legal ownership and control over whatever you entrust to him or her.
Clearly, it becomes very important whom you choose as a Trustee. You need to, well, trust the Trustee. However, the trust imposes legal obligations on the Trustee. You can add all kinds of requirements, directions, mandatory procedures, ec., that your Trustee must follow and carry out. Therefore, a Trustee can be forced to comply with the terms and conditions of the trust that you write.
Whatever goals, details, requirements, or instructions you write into the trust must be followed. A court can require the Trustee to do what the trust says. A Trustee has a "fiduciary duty" which is a very high level of legal responsibility to be faithful to follow the trust and administer the trust for the beneficiaries.
Note that the Trustee has no power over anything that you own unless you explicitly transfer property to the trust. So if you set up a trust, and do not transfer anything into the trust by a clear paper trail of a legal document, then the the trust will be empty. Similarly, if you have two (2) cars, and you transfer only one (1) of the cars into the trust, then the Trustee will only have legal authority over that one (1) car, and not the other one. You can decide what property you want the Trustee to administer for you.
When creating a Trust, you also decide on a beneficiary or several beneficiaries.
The job of the Trustee is to administer the property owned by the trust for the benefit of the beneficiary or beneficiaries.
So, for example, you can set up the following trust: I give $25,000 in trust to my financially sophisticated brother Roger, as Trustee, to invest and distribute for the benefit of the college education of my now 12 year old daughter Nancy and now 10 year old son Pete. The Trustee has a fiduciary duty (enforceable by a court) to invest the money -- and do so very safely (safety of investment is part of the fiduciary duty) -- and then to pay out the money in the trust for the college education of Nancy and Pete when those children reach college age. In this example, the Trustee Roger is legally required to use the money only for Pete and Nancy's education and for nothing else. (Because life is uncertain, you need to plan for alternatives. What if Pete or Nancy can't get into college? Part of writing a good trust is dreaming up what could go wrong and making alternative plans for everything.)
Another very common example is the following type of trust: I (as an indvidual) give myself (now as Trustee) $100,000 to pay for my living expenses during my life, but after I die to pay for the necessary living expenses of my son Pete and daughter Nancy as well as my final expenses. In this case, I would be the donor ("Settlor") of the property, the Trustee, and the beneficiary. One person can be all three (at least at first). But the trust can be written so that the moment I die, a successor Trustee instantly -- in the very next second -- becomes the next Trustee. So without going to court, without waiting for any legal procedure, without a second's delay, the next Trustee has full power to use the money for the purposes of the trust. (Again, the person who sets up the trust decides and defines exactly what the purposes of the trust are. You can write precise instructions.) No lawyers are involved. No court is involved. Nothing.
If I am the Trustee, it may be unpleasant to describe how my brother Roger (for example) is instantly the next Trustee before they wheel my body out of the hospital room. But that can be incredibly important. Who pays for funeral expenses? Who pays for final medical expenses? Who pays for clearing up my debts and expenses? What if family needs airplane tickets to travel to the funeral? With this kind of a trust, the next Trustee has power to write checks immediately. No one has to worry about who has authority to make these payments. It is clear that the successor Trustee can take care of everything without a second's delay, interruption, or doubt.
There is no delay. There is no waiting for a court to decide anything. There are no legal papers to fill out or file. At a time of great difficulty, the money held in the trust can be instantly re-deployed to make life easier for those left behind. The successor Trustee can cut a check in the very next minute. (If the successor Trustee has to sell property, a death certificate proving a change of Trustee may be needed as paperwork.)
A trust can be either revocable or irrevocable. So, for example, if I give my house and savings irrevocably to a Trustee (say, my daughter) to manage for my benefit during my life, and then to my daughter thereafter, my creditors cannot get at the house or the savings (unless they can show a fraudulent conveyance to evade already existing debts at the time). The house and the savings are protected from lawsuits against me unrelated to the house itself (though possibly not lawsuits from someone being injured in the house itself; insurance should address such things).
It may be obvious that one of the great powers of a trust is the ability to create alternatives and successor Trustees and beneficiaries. However, it can also be a lot of work to plan out all the possibilities.
So, for example, you can create a trust providing that the Trustee shall maintain a house "for the benefit of my Grandmother Brown for the remainder of her life, and then for the benefit of my sister Judy thereafter." This places the house for the full use of Grandma Brown as long as she lives. But then instantly transfers the house to the use of sister Judy, without any legal proceeding necessary.
One can create a trust which places the vacation house by the lake in the hands of a Trustee, with instructions to allow each of your three children to vacation there alternately in different years.
One can create a trust with complicated conditions: I give $20,000 in trust to the Trustee to give $7,500 to each of my two children on their 25th birthday, with an extra $2,500 to whichever one graduates with honors from college. (Technically, I would write dividing the other $5,000 among all children who graduate with honors but if none then giving it to the Peace Corps instead.)
The management (administration) of a trust does create some extra work. But in the long run, there is less work, less paperwork, less hassle overall, because probate and legal proceedings are avoided.
Can you avoid probate altogether? Probably not. As noted, there is nothing in your trust until you explicitly transfer ownership or title into the trust. So you will almost end up owning a few things that are outside of the trust. Let's say I create a trust and put everything I own in the trust. Then over the next 5 years I buy a car in my own name; accumulate $9,000 in a savings account giving lectures on the Civil War; buy some various random clothing and household consumer electronics and knick-knacks; and receive as a priceless (?) gift William Shatner's original Star Trek uniform from the 1960's. Then I die. (No cause and effect intended there.)
Those last items are not owned by my Trust. They are not controlled by the successor Trustee, if I did not transfer them into the trust. Therefore, probate may still be needed to decide what to do with the items I own personally in my own name.
However, many States have streamlined, simplified procedures for small estates. If what I own outside the trust is minimal, then very simplified, easy procedures may be used to handle those few remaining items. So there is a great benefit to having most of my items and money in a trust, and only a few things outside. Handling the few remaining items through probate is much simpler if there are far fewer things to work with. Furthermore, my heirs will have access to most of the assets immediately through the trust. If my family has to wait, they are only waiting on a few small items that are outside of the trust, handled in probate through my will.
Managing a trust does take some work, but it is less work in the long run. During ordinary living, it is necessary to update records to add new property or items acquired during your living and remove items that you have disposed of. For a revocable trust, you do not need to file a separate tax return. For an irrevocable trust, you will need to get a separate taxpayer number and file a separate tax return for the trust.
But with only a will directing the transfer of assets, the Will must go through Probate, which can be costly and lengthy.
At a law firm where I worked in Loudoun County, I spent many hours untangling a very small estate. The Loudoun County Commissioner of Accounts kept rejecting the reports about the estate, so the little old lady executors came to us for help. You wouldn't believe how much work it was to satisfy the Commissioner of the Accounts, to show where every penny went.
There are those who claim that a Trust may have little or no influence on Estate Taxes. For individuals with relatively small estates, or if the Trusts are not properly drawn, this may be the case. But it is important to note that when a Trust Beneficiary (usually the one creating the Trust) passes on, the assets remain in the Trust. It is only the Trustee and beneficiary which change.
If a husband and wife hold title to assets “in common” with “rights of survivorship” and have only a Will, there is no estate tax impact upon the death of one of the parties, as the law considers that the survivor owned the property all along. When the surviving party passes, however, the assets passing to children or other heirs will be required to pay estate taxes on the value of the assets that exceed the State and Federal allowances.
If, however, each of the married partners has created a Trust, and have funded the two trusts by dividing the total assets between the two Trusts, a different set of circumstances take place, particularly if the total assets are in excess of the State and Federal allowances.
Upon the passing of the husband, for instance, his half of their total assets remains in his Trust and only the Trustee and beneficiary are changed to the wife. There is no estate tax impact. The benefit of the Trusts only come into play when the wife passes. Now the assets of TWO trusts passes on to the children or other heirs, and each Trust is entitled to take advantage of the State and Federal Estate exclusions – double the exclusion of transfer based on a Will alone.
Of course, it is prudent to have a Durable Power of Attorney prepared as well as a Trust, this doubles the certainty that your wishes are carried out. Similarly, the Advance Medical Directives of the Trust can be duplicated in a separate document for additional security.
However, I hear so many people facing confusion about a Power of Attorney.
People imagine that a Power of Attorney gives someone more authority than is true. You should understand that a Power of Attorney does not make one the executor of the estate after the person dies. I hear about so many people who are using a Power of Attorney after the death of the person. That does not work. A Power of Attorney is automatically cancelled upon death. It is not legally proper for a family member to skip the probate process by using a Power of Attorney after a parent or relative has already died. The family must go to court and ask the Court to appoint a "personal representative" (Virginia's name for an executor). There are simplified procedures when the amount of money is involved. Ask the Clerk of the Court. But is is not correct to use a Power of Attorney after the person has died.