Yesterday I made a gift of a painting to my son. After, I reflected on making a gift. Something like this:
My best friend is an artist. A talented one. I've known him for about 50 years. We met in high school.
He paints wonderful landscapes. I own several of them. And I gave away one of my favorites yesterday to my son.
There was another one that is not so good, in my eyes. I would have liked if he would have said that one was the one he had his eye on.
Instead, he mentioned the one that I've liked for some time. It's a vertical piece, about 30 inches fall and 18 inches wide.
I mention it because it hurt a little to give it away. But I love my son (one of three children). And if he liked it, I wanted him to have it.
I reflected that a good gift should be something that you value. Money and non-money gifts differ in this way. Money is money, and it doesn't have a real relationship with you. Not a history.
In my line of work, as an estate planning attorney, I urge people of large wealth to give assets away. And to do it while they are living. Some act on my advice.
But the ones whom don't likely don't want to experience the pain of giving. To lower estate taxe, the gift should be large enough so that it 'hurts.' It lowers your principal. And maintaining principal is a long-lived adage in our society.
I gave the painting away not to lower estate taxes. I gave it away because it will outlast me. And why not see the pleasure my son and his mate will get from having it in their home.
Both transfer an estate to heirs, but only a trust can skip probate court
Will vs. Trust: An Overview
“You can’t take it with you when you go.”
While this familiar statement is true, you can and should do your best to control your assets from beyond the grave. If you are unable to do so, there may be obstacles to managing your estate. Those obstacles may significantly reduce the benefits your heirs would otherwise enjoy.
Possessions and money passing from one spouse to the other are generally not an issue. The unlimited marital deduction provision within the United States Estate and Gift Tax Law allows the passing of wealth to a surviving spouse without incurring gift or estate tax liabilities. 1
The transfer process becomes much more involved when wealth is passed to a subsequent generation. If assets that are held individually are properly titled, this process should be seamless. However, financial planners have seen some significant mistakes on the titling of assets held individually, as well as beneficiary designations that would be sure to upset even the happiest of homes.
For the purposes of this article, we will examine the transfer of assets to a subsequent generation—children, grandchildren, etc. Of the various situations dealt with in estate-transfer conversations, some outstanding ones include the following cases:
What is certain is that a vast fortune could easily be imperiled if the holder of such wealth does not consider the dynamics of an estate transfer.
What Is a Will?A will, also called a testamentary will, is a legally enforceable document stating how you want your affairs handled and assets distributed after you die. It is an important component of estate planning.
If you have minor-aged children at home, it's important to have a will that appoints guardianship of your children. If a guardian is not appointed at the time of death, your surviving family will have to seek help in a probate court to have a guardian appointed for your children. The person appointed may not be one whom you would have wanted to be entrusted with your kids.
You should also consider how you will pass a portion of your estate to a minor child through a will. A will places your decisions in the hands of the judge presiding over your estate transfer. Your testamentary will carries out your wishes from beyond the grave. A will also allows you to give insight and direction over the handling of assets your beneficiaries will receive.
Within reason, you can address how you would like them to use what you have left them. While children, natural or adopted, have a statutory right to inherit, a will allows you to disinherit a child if you choose to do so (check your state laws for the specific details about this). A person can disinherit a spouse as well, under certain circumstances. However, you will need to be aware of the laws governing your state—whether it is a common law state, a community property state, or an equitable distribution state; a person may only disinherit a spouse in a community property state. Each has a different set of stipulations on what and how much can be disinherited. Note, too, that a person can only disinherit a spouse or child through a will.
Seek legal counsel in the creation of a will. A will can be effective in an estate transfer and other legal proceedings after death, but there are drawbacks of which you should be aware. Your estate will become part of the public record, for example, and anything left by a will must go through probate court. Also, probate attorneys can be expensive and cannot be avoided, except in California and Wisconsin.
What Is a Trust?
A trust is another method of estate transfer—a fiduciary relationship in which you give another party authority to handle your assets for the benefit of a third party, your beneficiaries.
A trust can be created for a variety of functions, and there are many types of trusts. Overall, however, there are two categories: living and testamentary. A will can be used to create a testamentary trust. You can also create a trust for the primary purpose of avoiding probate court, called a revocable living trust.
Let's focus on a revocable living trust for the purpose of estate transfer. Like a will, a trust will require you to transfer property after death to loved ones. It is called a living trust because it is created while the property owner, or trustor, is alive. It is revocable, as it may be changed during the life of the trustor. The trustor maintains ownership of the property held by the trust while the trustor is alive.
The trust becomes operational at the trustor’s death. Unlike a will, a living trust passes property outside of probate court. There are no court or attorney fees after the trust is established. Your property can be passed immediately and directly to your named beneficiaries.
Trusts tend to be more expensive than wills to create and maintain. A person called a trustee will be named in the document to control the distribution of assets following the wishes of the trustor, in accordance with the trust document and its mandates. This is also an effective way to control the passing of your estate beyond the grave.
To be valid, a trust must identify the following: the trustor, the trustee, the successor trustee, and the trust beneficiaries.
A declaration of trust will also provide the basic terms of the trust. Your estate stays private and passes directly to your heirs, you do not pay a probate attorney or court costs, and your loved ones may be able to avoid being tied up in probate court for what could be a year or more. From this planner’s perspective, a trust can be a fantastic choice for estate transfer.
Trusts Could Keep You Out of Probate Court
One stop you should try to avoid on the estate-transfer train is probate court. This is where your heirs could spend months sorting out your estate if your plans for transfer are not efficiently laid out. You could easily lose an additional 2-4% of your estate due to attorney fees and court costs. 2
Probate court is the section of the judicial system responsible for settling wills, trusts, conservatorships, and guardianships. After death, this court might examine your testamentary will, which is a legal document used to transfer your estate, appoint guardians for minor children, select will executors, and sometimes set up trusts for your survivors.
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 are created during the lifetime of the trustmaker and can be altered, changed, modified or revoked entirely. Often called a living trust, these are trusts in which the trustmaker:
Revocable trusts are extremely helpful in avoiding probate. If ownership of assets is transferred to a revocable trust during the lifetime of the trustmaker so that it is owned by the trust at the time of the trustmaker'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 trustmaker's lifetime will remain available to the trustmaker'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 trustmaker.
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 trustmaker is not a current beneficiary. An asset protection trust is normally structured so that the undistributed assets of the trust are returned to the trustmaker upon the termination of the trust provided there is no current risk of creditor attack, thus permitting the trustmaker to regain complete control over the formerly protected assets.
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 trustmaker with valuable lifetime benefits. In addition to the financial benefits, there is the intangible benefit of rewarding the trustmaker's altruism as charities usually immediately honor the donors who have named the charity as the beneficiary of a CRT.
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.
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.
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.
Create a Trust Today: Find a Local Attorney
Forming a trust is a great way to protect your family's assets and to make sure loved ones are secure. You may decide that the complexity required for such a trust would benefit from the advice of an estate planning lawyer or you want to learn more about trust law legal answers. Get ahead of the curve and get some peace of mind for your family by calling a local estate planning attorney experienced with trusts.
I'm Joel Bernstein, an estate planning attorney with over 30 years of experience. I use plain English to help you understand wills, trusts, and the other documents you need to protect your loved ones and your estate.
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