A living trust is a legal document that, just like a will, contains your instructions for what you want to happen to your assets when you die. But, unlike a will, a living trust can avoid probate at death, control all of your assets and prevent the court from controlling your assets if you become incapacitated.
Upon the death of a trust maker our law firm offers legal services to your successor trustee. The trustee is responsible for seeing that the assets of the trust are distributed properly and in a timely manner. An overview of the valuable guidance we provide includes:
- Review of the trust document
- Gathering of all trust assets
- Explanation of trustee responsibilities
- Estate Tax Analysis
- Collection of death benefits
- Creation of sub-trusts
- Dissolution of trust
Revocable Living Trust
Perhaps the most common type of trust is the revocable living trust. As the name implies, revocable trusts are fully revocable at the request of the trust maker. Thus, assets transferred (or ‘funded’) to a revocable trust remain within the control of the trust maker; the trust maker (or trust makers if it is a joint revocable trust) can simply revoke the trust and have the assets returned. Revocable trusts can be excellent vehicles for disability planning, privacy, and probate avoidance.
A revocable living trust based estate plan provides instructions that will allow you to:
- Control your property while you are alive
- Take care of you and your loved ones in the event of disability
- Pass your property to your heirs when and how you want while maintaining privacy
- Ensure that you and your spouse have sufficient assets to maintain your standard of living now and in retirement.
- Maintain maximum control and flexibility during your lifetime.
- Provide for you in the event you become disabled.
- Simplify administration as much as possible upon your death or disability (avoiding probate & guardianship).
- Avoid having your private matters being made public unnecessarily.
- Ensure that the efforts you desire are used to save your life.
- Have your property continue to benefit the survivor after one of you dies.
- If married, protect your assets so that they cannot be lost as a result of remarriage after the death of one of you.
- Ensure that the persons you select in fact become the guardians of your minor children.
- Protect your children’s or grandchildren’s inheritance from mismanagement.
- Structure your children’s or grandchildren’s inheritance in such a way that it installs values and virtues.
- Educate your children and grandchildren.
- Reduce the risk of litigation from heirs who receive less than they think they are entitled to.
- Minimize income taxes to the extent possible.
- Avoid or minimize capital gain tax on the sale of assets.
- Eliminate as much estate tax as possible.
A revocable trust provides no asset protection for the trust maker during his or her life. Upon the death of the trust maker, however, or upon the death of the first spouse to die if it is a joint trust, the trust becomes irrevocable as to the deceased trust maker’s property and can provide asset protection for the beneficiaries, with two important caveats. First, the assets must remain in the trust to provide ongoing asset protection. In other words, once the trustee distributes the assets to a beneficiary, those assets are no longer protected and can be attached by that beneficiary’s creditors. If the beneficiary is married, the distributed assets may also be subject to the spouse’s creditor(s), or they may be available to the former spouse upon divorce.
Trusts for the lifetime of the beneficiaries provide prolonged asset protection for the trust assets. Lifetime trusts also permit your financial advisor to continue to invest the trust assets as you instruct, which can help ensure that trust returns are sufficient to meet your planning objectives. The second caveat follows logically from the first: the more rights the beneficiary has with respect to compelling trust distributions, the less asset protection the trust provides. Generally, a creditor ‘steps into the shoes’ of the debtor and can exercise any rights of the debtor. Thus, if a beneficiary has the right to compel a distribution from a trust, so too can a creditor compel a distribution from that trust.
Irrevocable Life Insurance Trusts
Life insurance is a unique asset in that it serves numerous diverse functions in a tax-favored environment. Life insurance proceeds are received income tax free and, if properly owned by an Irrevocable Life Insurance Trust, life insurance proceeds can also be received free of estate tax.
An Irrevocable Life Insurance Trust (ILIT) is one of the most popular wealth planning devices. It is a trust designed to own a life insurance policy, usually on the lives of you and your spouse. You gift funds to the trust periodically and the trustee uses the funds to pay premiums on the life insurance policy. The trust is designed to produce benefits for your family.
- Make current gifts to family members.
- Accumulate assets outside the client’s taxable estate.
- Protect assets from claims of creditors.
- Avoid income tax on the accumulation of funds.
- Avoid estate tax upon the distribution of funds to the family.
- Create a source of liquidity to cover estate taxes or expenses.
- Replace assets that may have been given to charity.
Medicaid Asset Protection Trusts
Planning for the costs of long term care is a critical component of preserving assets and avoiding potential impoverishment. A Medicaid Asset Protection Trust is an irrevocable trust designed to protect certain assets from being seized by the government for the costs of long term care. It is important to proactively plan while one is healthy so as to maximize the protection of assets and protect against losing one’s life-savings to the costs of long term care. We would be pleased to answer any questions you may have, and to offer our services to protect you and your loved ones from the devastating effect long term care costs can have without adequate protection.
Veterans Asset Protection Trust
As an attorney accredited by the Veterans Administration to represent veterans, we are proud to assist our country’s servicemen and women in planning for Veterans Pension benefits. A Veterans Asset Protection Trust is designed to preserve assets and obtain assistance for disabled veterans and their surviving spouses who need assistance with activities of daily living. The benefits are available to those who have either a service connected disability or to those who are over 65 and may need assistance with activities of daily living at home. There are asset and income level restrictions. Please feel free to contact us for further information.