1 1 Presents A Guide to the Living Trust 2027 Fourth St., suite 203 Berkeley, CA (510)
2 2 Table of Contents I. What is a Living Trust, history of the Living Trust, And who should have a Living Trust? Page 1-2 II. Advantages of using a Living Trust Page 3-4 III. Dis-advantages of a Living Trust Page 5 IV. Is a Living Trust all I need? Page 6 V. Types of trusts Page 7 VI. Frequently asked questions Page 8-10 VII. The Probate process Page 11 VIII. Definitions and commonly used terms Page IX. Legal Disclaimer Page 14
3 3 What is a Living Trust? A living trust is a legal document created by you during your lifetime. Just like a will, a living trust spells out exactly what your desires are with regard to your assets, your dependents, and your heirs. In some respects a living trust functions like a will, but it has some key advantages in facilitating a much smoother transition in transferring assets upon death. Unlike a will, a living trust will also allow for someone (a trustee) to manage your financial, healthcare, and legal affairs if you are not in the condition to do so. What is the history of the living trust? Living trusts date back to 16 th century England, when landowners used trusts to circumvent their property being taken by the King. The King was always concerned that landowners had too much land, so made sure he could oversee the distribution of property when a landowner died. Hence was the advent where a landowner would establish a trust with their Church, and in exchange the Church would promise to grant the land back to their heirs when the landowner died. In today s world, in absence of a living trust, the courts and a judge takes on the role of the King. Though a judge does not take the land for his/herself, they do have ultimate authority over one s assets and may often delay passing along those assets to their rightful heirs. When a living trust is in place, the trustee(s) take on the role of the Church and executes the transfer of assets to the heirs bypassing any supervision required by a judge (the King). Who should have a living trust? A living trust used to be appropriate only for individuals who have complex financial or personal circumstances, such as substantial assets, a blended family, closely held business interests, or property in other states. But recent thinking is that if you have more than $150,000 of jointly owned assets or own a home, then a living trust may be a good idea. A living trust can also be a very effective tool for an unmarried individual, regardless of financial situation, presuming that the individual s desires can t be fulfilled by utilizing beneficiary designations. Perhaps the most compelling reason to put one in place is to ensure your heirs have timely access to the wealth you are passing along, side stepping probate which can be a long and expensive court process.
4 4 Traditionally, trusts have been used as a strategy for reducing estate taxes on wealth that is eventually transferred to children, grandchildren, or other heirs. The fiscal cliff deal raised the lifetime gift and estate tax exclusions to $5,250,000 in This has helped simplify estate tax planning as individuals under this threshold no longer need to engage in more complex planning schemes to avoid estate taxes. In addition, Congress created portability of the federal estate tax exemptions. This means that a spouse can scoop up any unused portion of the federal estate tax exemption from his or her deceased partner, bringing the effective exemption amount per married couple to $10.5 million. Note that this amount is inclusive of any gifts given up to this point in time, so any gifts distributed prior to the settling of an estate will be deducted from the maximum exemption allowed. For individuals who have remarried, portability is limited to only the most recently deceased spouse. On the surface, these changes might cause a married couple with assets below $10.5 million to regard the creation of a living trust as unnecessary due to the estate tax exemption. The fact is, however, that there are many other reasons to consider employing trusts as part of your overall estate plan. In the following pages, we will discuss both the advantages and disadvantages of establishing a living trust. Remember, however, that a living trust is not the only document one should consider for their planning purposes. A will is still a critical document, a durable power of attorney in case you need someone to assist with your financial affairs, and an advance health care directive which enables someone to make health care decisions if you are unable to do so are all important documents for your consideration.
5 5 Advantages of a Living Trust Privacy and probate savings Whether you re married or single, the assets included in your will must pass through your state s probate process. This requirement raises two concerns: First, there are fees associated with probate; and, second, probate records are generally accessible to the public. By putting assets into a revocable trust during your lifetime, however, you can avoid having these assets pass through probate at your death and retain your family s privacy, while at the same time retaining full use and control of those assets during your lifetime. Control of your wealth Should you become incapacitated while you re living, a funded and properly constructed revocable trust, for example, may ensure that the trust assets will remain available for your benefit. After you re gone, the same trust can control who will receive distributions from the trust, as well as when the distributions will occur and on what terms. For example, you may set up a trust for your children that becomes effective upon your death and this trust will allow for the assets to be used under certain conditions and maybe become available at certain ages. This is especially important for families with children from multiple marriages, because the trust can help ensure that a decedent s specific wishes for the distribution of his or her wealth are carried out. Providing funds for educational purposes Trusts can make money available to your children, grandchildren, other relatives, or even nonrelatives for educational purposes, such as college tuition and living expenses. You can set up and fund trusts that parcel out money for educational purposes with a no-school, no-money restriction. Benefiting charities and institutions You can help out charities by setting up some type of charitable trust that may, for example, annually give money to the charity while you re still alive, give a larger amount upon your death, and then continue to make regular payments out of the remainder. You can even set up a charitable trust to make regular payments to the charity for some amount of time but eventually give back whatever is left to you or, if you ve died, to someone else in your family. Alternatively, you can set up a charitable trust to work the other way pay you while you re still alive, and upon your death, the remaining amount in the trust goes to the charity. Estate Tax Minimization While the living trust is not a good tax minimization tool on its own, provisions can be included in the trust documentation to transfer wealth by establishing a credit shelter trust in the event of your death. The credit shelter trust is a very effective tool to help maintain rights to the assets while earning income on those assets. Changeable or Revocable The living trust allows you to make changes (or amendments) to the trust document while you are still alive.
6 6 Advantages of a Living Trust continued- Gift tax considerations Some individuals and couples are taking advantage of the lifetime gift and estate tax exclusions that have risen to $5,250,000 in 2013 as a way to remove future appreciation from his or her own estate. But while this may be a sound strategy for removing the money from the donor s estate, note that the donor is relinquishing all control over the money. By gifting the money instead to a trust, the benefactor can at least establish control over how and when it is to be distributed to beneficiaries. Continuous Management This allows the wealth that you've accumulated to continue to grow for multiple generations by using a professional trustee to manage your property and assets. You can make special provisions to limit the amount of withdrawals to income only, as well as allow special emergency provisions if you wish. State Inheritance Taxes Estate taxes aren t the sole province of the federal government. There are 21 states that also levy an estate tax; some can be far from inconsequential and often apply to estates worth much less than the current federal estate tax exemption of $5.25 million. For those who live, or have assets such as real estate located in a state that has an estate tax, a properly constructed trust can be an effective estate planning tool for minimizing state estate taxes, just as it can be for potentially reducing federal estate taxes. Eliminate Challenges to the Estate The standard will can create family disputes at your death and be challenged for alteration by any member of your family. By using a trust, you can specifically disinherit anyone who puts forth a challenge to your wishes upon your death Segregation of Assets This is useful for married couples with substantial separate property that was acquired prior to the marriage. The trust can help segregate those assets from their community property assets. Assignment of Durable Power of Attorney/Guardianship A living trust can be used to help control a guardian's spending habits for the benefit of your minor children. It can also authorize another person to act on your behalf if you become incapacitated and need someone else to make medical decisions for you. Protection of your legacy A properly constructed trust can protect your legacy from your heirs creditors or from the spendthrift ways of the beneficiaries themselves.
7 7 Disadvantages of a Living Trust While there are many advantages to establishing a revocable living trust, there are also some drawbacks that should be considered. Maintaining Trust Books and Records You should consider the added inconvenience of making sure that future assets are continuously registered to the trust and providing other professionals with access to the trust documents to review trustee powers and duties. Re-titling of Property Once the trust is established, property must be re-titled in the name of the trust. This requires additional time, and sometimes fees apply to processing title changes. Expense of Planning While the standard will document might cost you only a modest fee, you should expect to pay significantly more to have a lawyer draft your trust. Costs can run from $1,500 to $4,500, depending on the complexity of your situation. Minimal Asset Protection Contrary to popular belief, revocable living trusts offer very little asset protection if you retain an ownership interest such as naming yourself as trustee. Administrative Expenses Expect to contend with additional professional fees such as investment advisory and trustee fees if you appoint a bank or trust company as the trustee. Absence of Court Review The administration of living trust will not be supervised by any court. While this avoids the paperwork burden and expense imposed by the probate process, persons creating a living trust should consider that the trustee they appoint will not be accountable to a judge for the honest and accurate distribution of assets unless a beneficiary were to bring a lawsuit. S o u r c e : J P M o r g a n Unpredictable Problems Hassles such as problems with title insurance, Subchapter S stock, and real estate in other countries can create a whole host of new issues. More problems can crop up if you fail to adequately educate your spouse on the terms and purpose of the trust.
8 8 Is a Living Trust all I need? As comprehensive as a living trust may sound, some may have further estate planning needs that get more specific to their own situation. For example, those with a blended family may want to consider a qualified terminable interest property (QTIP) trust, which may help provide income to a spouse from a second marriage. If funded and properly constructed, a QTIP trust may also be used to ensure that any principal goes to any children from a first marriage once the second spouse dies while being useful in minimizing estate taxes payable. For example, if a married couple s plan currently provides for funding a trust up to the amount of the full federal exemption at the death of the first-to-die spouse, that amount would now be $5.25 million, not the amount of the exemption when the plan was originally executed. This could be a disaster if, for example, the surviving spouse is not a beneficiary of the trust and the full value of the first-to-die s estate is less than the $5.25 million estate tax exemption. In this case, the surviving spouse could be left with insufficient funds outside of the trust to live on. In such a situation, the surviving spouse, at a minimum, should be added as a beneficiary of the trust. The uncertainty over future estate tax law clearly presents an ongoing challenge for keeping your estate plan aligned with the law at the time it is exercised. Married couples who have estates that may or may not be valued below the federal estate tax exemption at the death of the first-to-die spouse may want to consider a disclaimer trust. A disclaimer trust allows the first-to-die spouse to leave everything to the surviving spouse, but allows the survivor to disclaim the inheritance, in a timely fashion, and have it go into a trust instead. Essentially, this would allow for the surviving spouse to reap the full $10.5 million exemption by separating S o u r c e : J P M o r g a n any assets above the individual $5.25 million exemption while maintaining full control over the assets.
9 9 Types of Trusts Revocable Living Trust With a revocable living trust, you transfer your assets into the ownership of the trust. You retain control of those assets as the trustee, and can change or revoke the trust at any time you want. The assets in the trust pass directly to your beneficiaries without going through probate upon your death. However, neither wills nor revocable living trusts avoid or minimize estate taxes. This is the most common type of trust, and in 2013 individuals are allowed to pass along $5.25 million to their heirs estate tax free. Irrevocable Living Trust An irrevocable trust allows you to permanently and irrevocably give away your assets during your lifetime. After you give away these assets, you have relinquished all control and interest in these assets. Due to that fact, these assets are no longer considered part of your estate and aren t subject to estate taxes. As you likely imagine, an irrevocable trust is appropriate in only extremely rare circumstances, such as when you have more money than you or your spouse could ever use. Your beneficiaries would benefit at Uncle Sam s expense if you utilized an irrevocable trust to reduce your taxable estate before your death. Over time, the trust will enjoy the growth of the assets you transferred outside of your estate. QTIP s The purpose of a Qualified Terminable Interest Property Trust, or QTIP, is in a marital trust to provide income and principal, if necessary, to a surviving spouse while preserving the underlying assets of the trust for the grantor s children or other designated beneficiaries. If the trust is structured such that the surviving spouse has at least a lifetime income interest in the QTIP, an unlimited amount may be transferred to the QTIP without federal estate or gift taxes being incurred on the transfer. ILIT s: An Irrevocable Life Insurance Trust, or ILIT, can be used to allow the death benefit from a life insurance policy to pass outside the grantor s estate and therefore can shield the life insurance proceeds from federal estate taxes. Typically the grantor places money in the trust, and a trustee uses the funds to purchase an insurance policy on the grantor s life. Because the grantor does not own the policy and the trust does, the insurance policy can be excluded from the grantor s estate. Note an ILIT is irrevocable, so once the grantor places the funds in the trust, they cannot access it or revoke the trust.
10 10 Frequently Asked Questions How is my estate settled when I die without a Will? If you die without a Will, your estate must be settled the same as if you had a Will. There is one difference: Since you have not named your personal representative, nor listed your Beneficiaries, the court appoints a personal representative and distributes your assets to your relatives, according to the state law, which may not be your wishes. What do I need to set up my living trust? Decisions need to be made first. You will need to decide who will be the Trustee (usually yourself), who will be your Successor Trustee to act upon your incapacity or death, and who will be the Alternate Successor Trustee in case he cannot act. Also, a list of the beneficiaries and their addresses needs to be made. To prepare to Fund your trust, you will need copies of all your deeds, bank statements, investments and insurance policies. What property CAN I put into my Living Trust? Your Living Trust can hold a variety of property, including bank accounts, life insurance, copyrights, stocks and bonds, personal items, and real estate you now hold either individually or jointly with someone else. You designate as your Beneficiaries, those you want to receive this property when you die. Your property will be listed on a Schedule, which is included with the Living Trust. When the property s status changes such as when you sell your home or close out an account you should make a note next to the item on the schedule, include the date and what happened. For example, if you should sell your home, mark on the list, Home sold Place your initials by any such notations. What property SHOULD I put into my Living Trust? You should put all of the assets you own, which would otherwise be subject to probate into your Living Trust. This will eliminate the probate of your estate upon your death, and the need for a conservator to be appointed by a court in the event of your incapacity. Even property you and a spouse own in joint tenancy with right of survivorship should be retitled in the name of the Trust. This will avoid problems if both persons should pass away or become incapacitated. You may want to leave your personal items, household checking accounts and automobiles out of your Trust. A checking account with the name of your Trust on your checks may be a little less convenient at the grocery store. And, automobiles are easier to transfer upon a death if they are in your individual name, rather than to put them into your Living Trust. Do I need to record my trust with any government agency? No, you do not. A Living Trust is a private document and will remain so even after your death and distribution of your estate.
11 11 Frequently Asked Questions continued If I have a Living Trust, do I still need a Will? Yes. If you transfer all your property into your Living Trust, your Will probably will not have to be used. But you should have a Will to catch any property that was not transferred into your Trust. We call this a Pour-over Will. A Pour-over Will says that upon your death any property that is in your name is transferred into your Trust for administration. This can simplify the probate of those items under that Will. Who should I name as Trustee? You may act as Trustee yourself, or you may name anyone of your choice to serve as Trustee. The Trustee must be a person over the age of 18 years, or a bank, attorney or professional trust company. In most cases you know more about what you want your Trust to do, so you are the obvious choice to act as Trustee. If you are married, your spouse is usually named as a Co- Trustee. Who should I name as Successor Trustee? The Successor Trustee takes over as Trustee in case of the first Trustee s death, disability, legal incapacity, or resignation. If you and your spouse are Co- Trustees, you can set up your Trust so either one of you can serve as sole Trustee if the other could not serve for any reason. You should name one of your relatives, friends, Beneficiaries, or a professional Trustee to serve as Successor Trustee. This is a personal decision based upon who is available. This should be someone you think would be best able to manage your Trust and distribute the property upon your death. An Alternate Trustee should also be named in case your first chosen Successor Trustee cannot serve. How can I change or revoke my Living Trust? Your Living Trust is completely revocable. This means you can amend any of its terms or revoke the entire Trust at any time. If you re amending the Trust, your amendment should refer to the article which allows you to modify the Trust. You should clearly state the changes you want to make. This amendment should be in writing, signed by each of the Settlors, and notarized in the same manner as the original Trust document. The original of this amendment should be kept with the original of your Living Trust. One way to effectively revoke your Living Trust is to simply transfer your property out of the Trust, leaving the Trust empty. You need to retitle the property, just as you did when you put it into the Trust. Also, you need to notify banks and other companies involved, just as you did when you set up your Trust. Then you must also revoke your Pour-over Will. You may do this by executing a new Will. If you wish to completely revoke the Trust, rather than just empty it, you should prepare a written Notice of Revocation, in the same manner as an Amendment discussed above.
12 12 Frequently Asked Questions continued What do I do after I set up my Living Trust? When you set up your Trust, all your assets are listed on the Trust Schedule of Assets. This is a list of the assets you want to transfer into your Trust. After you set up your Trust, each company listed on your Trust schedule is notified of the change and they will note it on their records. This is called Funding the Trust. For example, if you transfer a bank account into your Trust, you should tell the bank so they can note this in their records. They will usually have you sign a new bank signature card showing the Trust as the new owner. If you transfer stocks and bonds into your Trust, you should notify the stock or bond transfer agent, usually named on your stock or bond certificate. Usually a corporation or bonding company will send you a transferring form when you tell them you have made the transfer. You may ask your stock broker to do this for you. There is generally no fee for such a transfer. In addition, you should draw up a new deed for any real estate you transfer into the Trust. The new deed should show the name of the Trust. The deed should show the name of the Trustee and the date of the Trust. This new deed should be recorded in the County where that property is located. There will be a fee to record your new deed. You should check with your County Recorder to find out about other requirements such as transfer tax exemption numbers, etc. You should also notify the Successor Trustee named in your Trust. Tell him (or her) that you have set up your Trust and that you have named him as Successor Trustee. Also make sure you tell him where you put your original Trust document. Where should I keep the Living Trust documents? You should keep the original Trust document in a fireproof file box or safe. You should not keep it in a safety deposit box at a bank because a safety deposit box is often inaccessible upon your death. Copies of your Trust should only be used for reference during your lifetime. Only the signed original of your Trust is a valid legal document. Do I have to file a tax return for the Living Trust? No, since you control and may revoke your Living Trust, any income to the Living Trust is treated as your income. You do not need to file a separate tax return for your Trust. Nor do you need to obtain a separate federal identification number for your Trust. This I.D. number remains your social security number. Is a Living Trust valid in all 50 states? Yes, a Living Trust is accepted in each state as well as most countries governed by a civil code.
13 13 Frequently Asked Questions continued Will Having My Assets In A Living Trust Avoid Challenges By My Beneficiaries Or Heirs? Disgruntled heirs or beneficiaries can challenge the validity of a "living trust" upon legal grounds similar to those available for challenging a will. It may be alleged that a "living trust" is invalid because the grantor was incompetent at the time of establishing the trust or was unduly influenced by some person to establish the trust in a particular manner. Will I Save Estate Taxes With A Living Trust, Compared With A Will? No. It is a common misconception that estate tax savings can be achieved with a "living trust" but not with a will. While use of a "living trust" will avoid probate proceedings, avoiding probate does not mean avoiding estate taxes. The assets in a "living trust" are part of a person's gross estate for estate tax purposes just the same as probate assets. However, both the will and "living trust," when properly written and with advice on the proper ownership of assets during lifetime, may include estate tax avoidance techniques which may save substantial tax dollars for the benefit of the family.
14 14 The Probate Process Probate is the official court process overseen by a judge who will supervise and make sure all outstanding bills are paid and any assets that are due to the beneficiaries are received. Residents of California who pass away without a living trust, even if they have a will, and have assets greater than $150,000 are subject to probate. Some assets may be excluded, such as cars, insurance policies, retirement accounts with named beneficiaries, and joint tenancy property. Consequently an attorney is typically needed along with a personal representative, usually the executor or administrator, to assist in the paperwork and general probate process. Both are entitled to compensation as outlined in the table below. It s fair to say, that the cost of establishing a living trust is far less than what it will cost your heirs to settle up your estate in the probate process. Table estimating fees related to probate court process: Gross Value Attorney Fee Personal Rep Fee Total Fee $100,000 $4,000 $4,000 $8,000 $500,000 $13,000 $13,000 $26,000 $1,000,000 $23,000 $23,000 $46,000 Statutory compensation for ordinary services is based on a formula. A graduated percentage is multiplied by the gross value of assets subject to probate as follows: 4% of the first $100,000, 2% of the next $800,000, and 1% on the next $9,000,000
15 15 Definitions and Commonly Used Phrases: Grantor - The person who creates the living trust. He or she decides what property to include and who the beneficiaries will be. Because the trust is revocable (i.e., can be changed or terminated) until the grantor dies, the grantor can change any part of the trust as often as he or she likes. The grantor is sometimes also called the trustor or the settlor. Trustee - The person or entity that distributes and manages the trust property according to the trust documents Trust Assets - property transferred into the trust Beneficiaries - Those who receive the benefits of the trust Community Property- A principle of law applicable to the following states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. All other states follow a rule of separate property (see definition). In a community property state, each spouse owns 50% of all property acquired during the marriage. Unless otherwise agreed in a prenuptial agreement, this includes money earned during the marriage and anything purchased with that money. Property received as a gift or an inheritance and property obtained before the marriage is considered the separate property of the person receiving it. It's usually a good idea to consider the source of the money used to buy an item if you're not sure if it is community or separate property. This may be helpful with items like insurance policies. In a community property state, each person owns half of the community property. A spouse can only give away his or her half of that property. For example, if a coin collection is community property, the husband can use his will or trust only to give away his 1/2 interest in the collection. Irrevocable Trust- A trust that neither you nor your successor trustee can change. Some irrevocable trusts can be changed under limited circumstances according to state law. Trustee- The person or company that manages trust property on the beneficiary's behalf. In most cases, the first trustee of a trust is the person who created it. You can name someone to act as a successor trustee after you are gone.
16 16 Definitions Definitions and Commonly continued- Used Phrases Revocable Trust- A trust you can change at any time while you are alive and of sound mind. When you die, your revocable trust becomes irrevocable. Probate- Probate is a court-supervised process used to validate your will and distribute your property. The process takes anywhere from six months to three years, and may require that lawyers or other professionals be hired. Even if you die without a will, if your estate's value exceeds a threshold amount, your property will still go through probate. In such cases, the court decides how to distribute your estate among your relatives. A living trust can help you avoid probate. If your assets are placed in a trust, you do not "own" the assets; the trustee of the trust does. You control the assets as if they were yours. When you die, you do not "own" the trust property. Therefore, the trust property does not have to go through probate. Successor Trustee- The person who assumes control of the trust after the initial trustee dies or becomes unable to continue with his or her responsibilities. Once the successor trustee has assumed control, he or she is responsible to ensure that your property is distributed to your beneficiaries according to the trust terms. Ideally, a successor trustee will be someone you know and trust. Estate Tax- After your death, your estate is subject to several kinds of taxes. Some states have an inheritance tax and/or an estate tax. The federal government imposes an estate tax that applies no matter where you live. The federal estate tax was temporarily repealed in 2010, but was reinstated in The estate tax is based on the total value of the property in a deceased person's estate. If your estate is worth less than a certain amount, no estate taxes will be due. Also, any portion of your estate that goes to your spouse, either directly or in certain types of trusts, will not be subject to estate tax. Separate Property- Everything the husband and wife own separately. In a community property state, this includes property received as a gift or an inheritance, obtained before the marriage, and property purchased with those assets.
17 17 Legal Disclaimer Disclaimer:, Inc. (EWM) is not a law firm, and the employees of EWM are not acting as your attorney. EWM does not practice law and does not give legal advice. This document is not intended to create an attorney-client relationship, and by using EWM, no attorney-client relationship will be created with EWM. Furthermore, the legal information in this document is not legal advice and is not guaranteed to be correct, complete or up-to-date. Because the law changes rapidly, EWM cannot guarantee that all the information on the site is completely current. The law is different from jurisdiction to jurisdiction, and is also subject to interpretation by different courts. The law is a personal matter, and no general information or legal information like the kind EWM provides can fit every circumstance. Therefore, if you need legal advice for your specific problem, you should consult a licensed attorney in your area. EWM is not responsible for any loss, injury, claim, liability, or damage related to your use of this document. In short, your use of this document and the information therein, is at your own risk.
18 18 is committed to making life easier for you while maximizing your investment potential. E m o We Ma me 2027 Fourth St., suite 203 Berkeley, CA (510)