There are many ways to provide for your loved ones both during your lifetime and after you pass way. The most common way to distribute assets is with your will. A will is a document in which you set forth who gets your property after your death. You can also use tools such as life insurance and beneficiary designations in retirement plans to pass on wealth. Another tool is a trust. With a trust you can accomplish some of the same goals as a will. For example, you can use a trust to transfer your assets to beneficiaries of your choosing. While you can design your trust to effect asset transfers to your beneficiaries upon your death, you can also create a trust during your lifetime and transfer assets to it during your lifetime. There are many different types of trusts. However, in order for you and your beneficiaries to reap the benefits of a trust arrangement it is necessary that it be set up and managed consistent with federal and state law, including federal tax law. To learn more about the advantages of a trust and to learn how a trust might fit into you estate planning needs, contact an experienced Staten Island Trust Lawyer who will explain the benefits of a trust and how a trust may fit into your specific estate plan.
A trust agreement setting forth its terms is the written document that is necessary to set up a trust. The trust agreement will name the parties involved: the trustor (you as the person establishing the trust), the trustee (the person who will manage the trust), and the beneficiaries. The trust assets are legally titled to the trustee, but equitably owned by the beneficiaries. In addition, the trust will set forth the details as to how the trust assets are to be managed and how distributions are to be made to the beneficiaries or on behalf of the beneficiaries.
What is the difference between a living trust and a testamentary trust?There are two general categories of trusts, based on when they are created. A living trust is one that you create during your lifetime. It is also referred to as a inter vivos trust. A testamentary trust is one that is created after your death based on instructions in your will.
Is a living trust the same as a living will?No. A living will is not a trust. A living will is a document in which you set forth your preferences in the event you become incapacitated with a serious illness from which you are not likely to recover. For example, in your living will you can let your family and health care team know whether you would prefer to receive life-extending treatments such as a blood transfusion, organ transplant, artificial nutrition and hydration, or CPR.
What is the difference between a revocable trust and an irrevocable trust?Another way to categorize a trust is based on whether it is revocable or revocable. A revocable trust is one that the trustor retains the power to cancel or change at any time. An irrevocable trust is one that may not be canceled or changed after it is created. A revocable trust becomes irrevocable after the death of the trustor.
Are there special types of trusts?There are many different types of trusts designed based on your specific personal and financial needs. There are trusts designed for charitable giving including charitable remainder trusts and charitable lead trusts. There are trusts designed to transfer wealth from to other family members while minimizing tax impact including marital trusts, generation-skipping trusts, and qualified terminable interest property (QTIP) trusts. In addition, there are trust designed to protect the assets of special types of beneficiaries, including special needs trusts and spendthrift trusts.
What are the advantages of a trust?While a trust and a will are similar in that they both are a way to leave assets to your loved ones, there are several advantages that a trust has over a will. For example, unlike a will, assets that you transfer to a living trust during your lifetime are not subject to probate. Probate is the process during which a will is validated by the New York Surrogate's Court and the assets in your estate are distributed to the beneficiaries you name in your will. While this may seem like a simple process, probate can be quite complicated and is usually lengthy. In the meantime, your beneficiaries will have limited access to your estate's assets. Keep in mind that unlike a living trust, a testamentary trust does not avoid probate. A testamentary trust will be funded with your assets only after those assets go through probate.
Another advantage that a trust has over a will is that trusts are generally more private than wills. When a will is submitted to Surrogate's Court to be probated, it becomes a matter of public record. This means that anyone can go into the clerk's office and review the estate file. In other words, anyone will be able to read the will, find out who your beneficiaries are and what you left them, look at the claims of creditors and the list of assets, and even find the phone numbers and addresses of your beneficiaries. If you have a living trust you can keep your estate details private. Because living trusts are not subject to probate, they are not filed with the Surrogate's Court and are not made public.
Who should I name as the trustee of my trust?You can name anyone you want to serve as trustee as long as that person is at least 18 years old and is mentally competent, as such a person would need to have the legal capacity to enter into contracts and conduct business transactions. People often name family members as trustee. For a living trust, you as the trustor can name yourself as trustee and name another person as a successor trustee who will take over trustee duties once you pass away.
If the trust is complicated or has significant assets, it may be a good idea to appoint a professional trustee such as an attorney or bank as a trustee.
What responsibilities will the trustee have?The trustee's responsibilities will largely depend on the terms of the trust. In general, all trustees will be required to administer the trust according to its terms, communicate regularly with trust beneficiaries, and keep records of transactions related to trust assets.
If I create a living trust, do I still need to have a will?If you create a living trust, it is also a good idea to have a will. Any property that you have not transferred to your living trust will remain in your probate estate. If you do not have a will, that property will be subject to New York's laws regarding intestate succession. This means that the property will pass not to the beneficiaries of your choosing, but to your heirs as defined by statute. To make sure that this does not happen you would need to have at least a simple will that provides for the disposition of any assets that remain in your estate after your death. Oftentimes due to oversight not every asset is not placed in a living trust.
A trust is quite complicated to set up. Many trusts require not just knowing your goals, who you want to name as the trustee, and who you want to name as beneficiaries. Setting up a trust requires an understanding of complicate laws tax laws, estate planning laws, and in the case of special needs trusts, laws related to Medicaid and Social Security Income. If your trust is not set up correctly the goals of your trust may not be realized and the financial consequences may be severe. To ensure that your trust, will and other estate planning documents are properly drafted and executed, it is important that you work with an experienced practitioner. The staff at Stephen Bilkis & Associates, PLLC has years of experience working closely with New York clients to develop a variety of types of trusts as well as wills and other estate planning documents. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.