and Your Family
Manhattan Revocable Trust
A revocable trust is an estate planning document that allows you to distribute property to the people of your choosing during your lifetime, as well as well as provide gifts to your loved ones after you pass away. It is similar to a will in that you can specify which property you would like each of your beneficiaries to receive upon your death. However, with a trust not only can you specify that your loved ones receive distributions while you are still living, upon your death, your loved ones would received transfers from the trust a lot more quickly than they would through your will. Furthermore, there are numerous types of trusts that you can set up to achieve your specific planning goals. To learn more about revocable trusts and how they may fit into your estate plan, contact a Manhattan Revocable Trust Lawyer who has experience not only with creating trusts, but with making wills and other estate planning documents.
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A trust is an estate planning vehicle that holds property for the benefit of another person. The person who creates the trust is known as the grantor, trustor, settlor or trustmaker. The person who manages the property in a trust is called the trustee. The person who receives the benefit from the trust is the beneficiary. The terms of the trust are included in the trust document.
A trust can be a living trust or a testamentary trust. A living trust is created and funded while you as the grantor are still living, while a testamentary trust is created and funded through your will upon your death. A living trust can be revocable or irrevocable. With a revocable trust you can change the terms of the trust at any time. You can even dissolve it if you want to. You can name yourself as the trustee and maintain a great deal of control over the assets of the trust. On the other hand, after you create an irrevocable trust you cannot change its terms and you cannot dissolve it. An exception to this general rule is if there was an error in the trust agreement. For example, in the case of In the Matter of the Application of Genevieve D. Scheib, 836 N.Y.S.2d 489 (2007), the petitioner, Genevieve Scheib, created an irrevocable trust which had a primary purpose of asset protection. Some time after the trust was executed Scheib noticed that there was an error in the trust document and asked the court to allow the trust to be changed even thought it was an irrevocable trust. The court allowed this trust to be changed because based on testimony from those familiar with her intent, it was clear that there was a drafting error.How does a revocable trust avoid probate?
When you create a trust and transfer your property to it, the property is no longer owned by you. In other words, the property is not part of your estate. For example, if you transfer your home to your trust the title of the house will change from your name to your trust's name. Thus, when your will is admitted to probate and your executor takes an inventory of your assets, any property that has been transferred to your revocable trust during your lifetime will not be a part of your assets that are subject to probate. Instead, the assets that are in the trust can be rather quickly distributed to the trust's beneficiaries, according to the terms of the trust agreement.
On the other hand most of your property that was not transferred to your trust during your lifetime will be subject to probate. Probate is a lengthy process. At a minimum you can expect probate to take 9 months. If your estate is subject to a will contest or probate litigation, if there is an estate tax issue, if there are beneficiaries or heirs that are hard to find, or if your estate is particularly complex, probate may take substantially longer than 9 months-- up to multiple years. In addition, there are fees associated with probate that will reduce the value of the property in your estate that is available to distribute to your beneficiaries.Why is a revocable trust more private than a will?
When your executor files your will with the New York Surrogate's Court in order to open your estate and have your will admitted to probate, it becomes public. Anyone can look it up, read the details, and make a copy of it. Because living trusts are not probated they typically remain private documents. The exception is where a trust becomes an issue of litigation. In such a case a trust document may become part of the public record of the case.If I have a revocable trust, why do I need a will?
While a living trust is an important estate planning tool, it is important to understand that even if you have a trust your estate plan should also include a will. For a number of reasons, it is very likely that not every asset in your estate will be part of a trust that you set up even if your goal was to transfer all of your assets to your trust during your lifetime. For example, suppose you inherited real estate shortly before your death and your did not get a chance to transfer it to your living trust prior to your death. That real estate would be part of your property that is subject your will. If you do not have a will, any assets that are not trust property will be subject to the New York rules of intestate succession.
Under New York's intestacy laws, there are specific rules that dictate who will get those assets that you did not transfer to your will prior to your death. For example, if you have a surviving spouse as well as children, most of those assets will go to your spouse with a smaller share being divided among your surviving children. If you have surviving children, but no surviving spouse, all of your assets will go to your children. If you do not have a surviving spouse or children, then your assets will go to your surviving parents. After that, other blood relatives such as aunts, uncles, and cousins will be entitled to inherit your property according to a specific order of priority. The laws of intestate succession generally only allow assets to go to a spouse or a blood relative. NY EPTL § 4-1.1. If you want assets to go to a friend or charity, for example, you would have had to specify it in a will or trust.What happens to my revocable trust when I die?
When you as the trust grantor pass away, the revocable living trust becomes an irrevocable trust. This means that the trust now cannot be changed. If you are the trustee, then your successor trustee takes over the trustee duties. Taking over the trustee duties involves several steps that are similar to the job of an executor of an estate. Some of these steps include:
- Locating trust assets including accounts of which the trust was named as the designated beneficiary.
- Appraising the trust assets
- Paying trust debts
- Determining any tax liabilities of the trust
- Preparing any required trust tax returns
- Paying ongoing expenses related to administering the trust such as fees owed to attorney or accountant fees.
- Managing and investing trust property until it can be distributed to the beneficiaries
- Distributing assets to trust beneficiaries according to the terms of the trust
Funding a living trust means transferring assets that you own to the trust. If you do not fund your trust it is meaningless. In order to transfer property that is owned by you to your trust, you must either change the title of the property, assign ownership rights, or change the designated beneficiary.
- Change title. For property such as a bank account, investment account, or real estate, in order to transfer ownership to your trust you must change the title of that property from your name to the name of the trust. If the real estate still has a mortgage, the transfer may be more complicated.
- Assignment of ownership rights. For property that does not have ownership title, you must assign ownership right in writing. Such property includes personal property such as jewelry, artwork, monies owed to you, and partnership rights. To assign ownership rights, document the transfer using language such as: "I, John Smith, hereby assign all of my right, title, and interest in the painting entitled "My Painting" to Joe Thomas, Trustee, or his successors in trust, under the John Smith Living Trust."
- Change beneficiary. For assets that have beneficiary designations such as life insurance policies, 401(k) accounts, IRAs, and other retirement accounts, change the primary designated beneficiary from an individual's name to the name of your trust. Keep in mind that for qualified requirement accounts, it is important not to re-title the accounts, but to simply change the beneficiary designations. If you re-title the account, the transfer may be treated as a complete withdrawal of funds in the account and you will be subject to a stiff income tax consequences.
A revocable trust may be a valuable part of your estate plan. However, creating a trust is complicated. Depending on the type of trust you wish to set up, different federal and local rules will need to be carefully followed. If your revocable trust is improperly both you and those your want to provide for may be negatively impacted financially. Furthermore, it is important to understand the rules and tax implications related to the administration of a trust. To learn more about revocable trusts, wills and other estate planning tools, contact Stephen Bilkis & Associates, PLLC. We will help you develop an overall estate plan that reflects your individual goals. Contact us at 800.696.9529 to schedule a free, no obligation consultation regarding your estate plan.