Many attorneys recommend trusts to their clients, but not everyone needs a trust. Here are some questions and answers to help you decide if a trust might be useful in you situation.
A trust is a legal agreement that names someone to hold property for the benefit of others. The trustee is the person or company that manages trust property and “beneficiaries” are the people who benefit from the trust. A living trust is a trust created while the property owner is alive and it is revocable for the lifetime of the trust maker. In contrast, a “testamentary trust” is one that takes effect when the trust maker dies. Some people use a will in addition to a trust to distribute their property.
The main advantage to using a trust is that a trust helps to avoid probate. Probate is the court process though which assets are transferred and debts are paid off. The process can be very expensive and can take a long time.
There are some other advantages as well. They include:
A trust may take longer to create than a will and can be more expensive. This is because trusts are usually more complicated than a basic will. However, in many situations, a trust can save money in the long run.
When you compare the cost of a will with the cost of a trust, also consider whether your estate will have to go through probate and look into how much that may cost. You may find that using a trust to avoid probate is well worth the cost of making a trust. You can do this research yourself using the internet and good self-help books, or an estate planning lawyer can walk you through both options.
A revocable trust is one that can be modified or revoked at any time. This type of trust normally becomes irrevocable when the trust maker dies. An irrevocable trust cannot be changed
A living trust is a common type of trust used to transfer trust property to beneficiaries without probate. After you make a living trust, you transfer property into the trust and you become the trust’s trustee. A living trust is revocable, so you can change it during your lifetime. After you die, the trust becomes irrevocable and your successor trustee distributes trust property to beneficiaries following the terms of the trust.
An AB trust is like a living trust, but when the trust maker dies, an AB trust splits into two buckets: One bucket of property goes directly to beneficiaries, and property in the other bucket is set aside for use by another person before it passes on to the final beneficiaries. AB trusts are most often used as marital trusts, because they allow a surviving spouse to use the deceased spouse’s property before the property passes to deceased spouse’s children.
For many years, couples also used AB trusts avoid or reduce estate taxes. However, most couples no longer need to worry about estate taxes because married couples can leave more than $10 million dollars with no federal estate tax liability. That said, AB trusts can still be useful to couples with more modest estates in states that have estate taxes with lower exemption amounts.
After your father dies, the AB trust becomes irrevocable. The surviving spouse can't revoke the trust. Limits on what she can do with the property depend on the terms of the trust.
A trust can be contested just like a will. A trust contest could be successful if the trust maker was mentally incompetent, forced, unduly influenced, or deceived when setting up the trust.
A trust can override a will in certain situations. For example, if you transfer your diamond ring into your living trust, technically the trust becomes the owner of the ring, not you. So if you use your will to leave the ring to you granddaughter, but you name your niece to get it through your trust, your trust would override your will because your trust, not you, owned the ring when you died. There are some exceptions to this general rule. See a lawyer if you have a specific question.