Updated: Nov 24, 2020
One of the ways to make sure your family is protected and to not have to start a Living Probate (in case of your disability) or Death Probate (in case of your death) is to create A Revocable Living Trust, at a minimum. It will allow you to avoid probate, manage your assets if you were to become incapacitated, and help to protect your family’s privacy. If you have one, it’s a good idea to review it every few years to make sure that it still meets your goals and is up-to-date with the law.
It is imperative that you know for sure that your assets are in the trust (were retitled from your personal name to the name of the Living Trust) and what will become of them if something should happen to you. But there are a lot of other factors to think about that can also be very important for your estate plan. Here are some common issues and problems with living trusts that you might want to consider:
Do you have the right successor trustees? Typically, you’ll be the trustee of your own living trust. But it’s good to name successor trustees in case you become incapacitated. Have you done so? If so, are the people you named still the best people to manage your affairs? Do you want one of them to begin acting as a trustee now?
Can your heirs remove a trustee? Do you want your heirs to be able to remove a trustee? This can potentially be helpful if there are communication problems or disagreements with a trustee. On the other hand, some heirs might take advantage of this provision by installing a “puppet” as trustee who will ignore your wishes and do whatever they want.
Do you have a Trust Protector in place? This person is given powers to intervene in case there are disputes between beneficiaries and trustees, if there is no successor trustee in place, etc. and avoid unnecessary court fees. Trust protector will have no interest in your estate, but simply make sure that your decisions are being followed and your beneficiaries’ interests are protected without incurring any additional court costs and time of litigation.
Does your trust protect children from lawsuits and divorce? Standard trusts created by paralegals or even some attorneys distribute property Outright to your beneficiaries (children). Are you certain that your children (18 years and older) ready to receive a significant share in their own name and be subject to liabilities? You have the option of having your trust continue during your children’s lives, so the assets in the trust will be protected if your children are sued, incur large debts, or get divorced.
Have you funded the trust? It’s not uncommon for people to set up a trust and then forget to re-title their assets so they are included in the trust. But this mistake can destroy all the benefits of having the trust in the first place. So, you’ve created this beautiful and expensive document that doesn’t serve it’s purpose unless funded property. And the estate will still go to probate at the time of your death.
Have you reviewed your beneficiary designations? A trust should be coordinated with assets outside the trust that have beneficiary designations, such as bank and brokerage accounts, IRAs, 401(k)s, life insurance, etc. These designations should be reviewed every few years to make sure they’re current and coordinated with the trust as part of your estate plan.
When do children and grandchildren receive their inheritance? Most trusts provide that assets will remain in the trust until those inheriting them reach a certain age, such as 21. But it’s important to note that not all 21-year-olds are responsible enough to handle an inheritance. You can change this age if you want. You can also provide that assets will be distributed over time. For instance, a third of the assets might be distributed at age 25, another third at age 30, and the remainder at age 35.
Is the trust the beneficiary of a retirement plan? While you can choose to have your retirement plan assets go directly to your heirs – and this is often the simplest approach – there can be advantages in leaving these assets to a trust. However, this requires some very technical provisions in the trust, and on the plan’s designated beneficiary forms. It is important to make sure these provisions are current.
Is your trust up-to-date for estate tax purposes? Congress and many states have changed the estate tax laws several times in recent years. If your trust is more than a few years old, or if you lived in a different state when it was drafted, it should be reviewed by an attorney to make sure it’s still current and that you’re getting all the tax savings that are available.