One of the most important steps in Estate Planning is creating a will. Sometimes, however, a Will is not enough to protect your family and your property, especially when you have family members or dependents who may need more than money or property. In these cases, setting up a trust is the right answer.
The Serafini Smith Law Firm offers a full range of trusts, including:
Trusts have existed since Roman times and have become one of the most important innovations in property law. There are many different types of trusts, but the legal definition of a trust is a relationship whereby property is held by one party for the benefit of another. A trust is created by a settlor, who transfers some or all of his or her property to a trustee. The trustee holds that property for the trust’s beneficiaries.
An owner placing property into a trust turns over part of his or her bundle of rights to the trustee, separating the property’s legal ownership and control from its equitable ownership and benefits. This may be done for tax reasons or to control the property and its benefits if the settlor is absent, incapacitated, or dead. Trusts are frequently created in wills, defining how money and property will be handled for children or other beneficiaries.
With so many choices, though, it can seem overwhelming. Proper legal counsel from an experienced Estate Planning & Trusts Attorney can help you navigate Trusts.
The trustee is given legal title to the trust property, but is obligated to act for the good of the beneficiaries. The trustee may be compensated and have expenses reimbursed, but otherwise must turn over all profits from the trust properties. Trustees who violate this fiduciary duty are self-dealing. Courts can reverse self dealing actions, order profits returned, and impose other sanctions.
The people involved in a trust are as follows:
If you have a Revocable Living Trust, you have probably chosen yourself as the trustee for now. But someone else will need to step in if you are incapacitated or pass away.
Choosing a Trustee is a very personal decision that should be taken quite seriously.
Your trustee will take responsibility for the assets in your trust, manage the money, and should only use the assets in the beneficiary’s best interests.
The trustee may be either an individual, a company, or a public body. There may be a single trustee or multiple co-trustees. It is up to you, the grantor.
Your successor trustee will act without court supervision, so it is up to them to get things started and keep them going. Your CPA and other advisors can guide them, but it is still essential you choose someone who is conscientious and responsible.
As a Trustee, the chosen person will:
The trust is governed by the terms under which it was created. In most jurisdictions, this requires a contractual trust agreement or deed.
You can exactly specify the terms of your trust, and control when and to whom your assets may be distributed. For example, you could set up a revocable trust so your trust assets cannot be accessed during your lifetime while designating who they will go to thereafter. This can be used even when there are complex situations, like children from multiple marriages. Only you get to decide when your assets are distributed, how they are distributed, and to whom they are distributed. In other words, if you want to prevent Uncle Jim from accessing any of your assets, you can. If you want to give everything to your children or only certain assets, you can. It is all up to you. You have complete and total control over who gets access to your assets and who does not, where the money goes, and how it is used.
When handled properly, a trust can help protect your estate today, and in the future. In addition, it can protect your estate from creditors and/or beneficiaries who may be irresponsible with money. In any case, a trust can protect your assets and your legacy. It gives you peace of mind that your estate will be distributed properly. Furthermore, trusts can prevent you from unintentionally disinheriting someone, protect your assets from specific people, and help care for family or loved ones with special needs in the future. Knowing this will give you peace of mind in the future, as you will have taken care of everything early on. A trust can also provide that same comfort and security to your loved ones, knowing that they are safe and taken care of, and you are protected for the long-term.
A living trust can avoid probate altogether. Depending on your situation, probate can sometimes become a long, drawn-out, expensive process. This may not only delay distribution of assets to your beneficiaries, but also reduce how much they inherit. A trust handles distribution of your assets without court intervention. The trustee distributes assets according to instructions given by the trust creator. This means faster estate distribution, often shortening the time frame from years or months to weeks – without any extra expenses to the estate. This option is particularly helpful if you own property in another state. Finally, a living trust protects your privacy, as it is a private document between the parties involved. No one can search public records and find information regarding your trust. A will, on the other hand, is public record.
Yes, you do. A will handles any property not included in your living trust. This could have been left out for a myriad of reasons. For example, property that was not properly transferred into the trust can be distributed using your Will. The Will also includes any property bought or received after the trust was created, unless you transfer the property to, or purchase it in the name of, the trust. A Will also covers property you left out of the trust on purpose, like cars or bank accounts.
As trustee, you are responsible for the trust’s assets, but that does not mean you ca not ask for help. In fact, you absolutely should be asking for help along the way. You can use trust assets to pay for help from experts like administration attorneys. These people can guide you through the process, even if you like doing most of the work yourself. It is also a smart idea to hire an accountant or tax preparer to help you prepare the trust’s tax return, which is usually due on April 15th the year after the grantor passed away. The accountant can advise you on any income tax issues as well.
Yes, absolutely. If you have an individual trust, you can transfer property in and out of it whenever you like. You do not need permission from anyone else to do so. However, if you share a trust with someone else, you will need to get your co-trustee’s consent first.
Yes! The best example of this is a home with an attached mortgage. Your beneficiary will become responsible for the debt (mortgage) when they receive the property. If you would like your trust to first pay the balance of a mortgage (or another debt) before it is distributed to your beneficiary, let your Attorney know.