If you decide on a trust, which one is best?
The question of whether you need a trust or not in your estate plan is best answered after a discussion with an estate planning attorney. However, here is some preliminary guidance from U.S. News & World Report in “8 Things to Know About Trusts“.
- Revocable or Irrevocable? Revocable trusts are usually established for a person (the grantor) during their lifetime, and then passes assets to the named beneficiaries when the grantor dies. The revocable trust allows for a fair amount of flexibility during the grantor’s lifetime. An irrevocable trust is harder to change, and in some cases cannot be changed or amended. Some states, for example New York, do allow the option of “decanting” trusts, that is, pouring over assets from one trust to another. You’ll want to work with an experienced estate planning attorney to be sure trusts are set up correctly to achieve the goals you want.
- Trusts can protect assets. Irrevocable trusts are often used when a grantor must go into a nursing home and the goal is to protect assets. However, this means that the grantor no longer has access to the money and has fundamentally given it away to the trust. Putting assets into an irrevocable trust is commonly done to preserve assets when a person needs to become eligible for nursing home Medicaid. The trust must be created and funded five years before applying for benefits. Irrevocable trusts can also be used to obtain veteran’s benefits if they are asset-based. VA benefits have a three-year look-back period, as compared to Medicaid’s five-year look-back period.
- Trusts can’t own retirement accounts. Trusts can own non-retirement bank accounts, life insurance policies, property and securities. However, retirement accounts become taxable immediately, if they are owned by a trust.
- Trusts help avoid probate after the grantor’s death. Most people think of trusts for this purpose. Assets in a trust do not pass through probate, which is the process of settling an estate through the courts. Having someone named as a trustee, a trusted family member, friend or a financial institution, means that the assets can be managed for the beneficiaries, if they are not deemed able to manage the assets. Another good part about trusts: you can direct how and when the funds are to be distributed.
- Trusts offer privacy. When a will is filed in the courthouse, it becomes part of the public record. Trusts are not, and that keeps assets and distribution plans private. A grantor could put real estate and other personal property into a trust and title of ownership would remain private.
- Tax savings. Before the federal estate tax exemptions became so high, people would put assets into trusts to avoid taxation. However, state taxes may still be avoided if the assets don’t reach state tax levels. You can also transfer funds into an irrevocable trust to transfer it to others without making it become part of a taxable estate. This is something to discuss in detail with an estate planning attorney.
- Irrevocable Trusts can be expensive. If you are considering an irrevocable trust as a means of controlling the cost of an estate, this is not the solution. Trusts require careful administration, annual tax filings and other fees. You may also lose the advantage of long-term capital gains by putting assets into trusts, since they are taxed upon withdrawal, and usually based upon current market value. The marginal rates for trust income of all kinds apply at much lower levels so that the highest marginal taxes will be paid on very low levels of income.
- Work with an experienced estate planning lawyer. Trusts and their administration can be complex. Seek the help of an experienced estate planning attorney who will be able to factor in tax liability and the impact of the trusts on the rest of your estate plan. Remember that every state has its own laws about trusts. Finally, an estate plan needs to be updated every few years. For example, trusts that were set up for a far lower federal estate tax exemption several years ago are now out of date, and may not work to achieve their intended goal. The laws change, and the role of trusts changes too.
An estate planning attorney can advise you in creating an estate plan that fits your particular circumstances and may include a trust.
Reference: U.S. News & World Report (March 29, 2019) “8 Things to Know About Trusts”
