When it comes to estate planning, many people draft a will to dictate how assets will be distributed after their death. But a trust can offer additional benefits to you and your family.
When you die with only a will, most likely, your personal representative (executor) will have to apply for probate. This judicial process validates the will, which is then available to the public. But assets placed in a trust generally avoid probate, and your estate information remains private. The distribution of assets is generally faster and simpler, too.
CHOOSE THE RIGHT TRUST
There are many types of trusts, but generally there are two types that work for most people:
- An irrevocable trust has terms and provisions that cannot be changed by the grantor. Using an irrevocable trust allows you to minimize estate tax, protect assets from creditors, and provide for family members who are minors, financially irresponsible, or who have special needs.
- Alternatively, a revocable trust, allows the grantor to change the terms of the trust. For example, you can make an annual exclusion gift to a revocable trust without incurring a gift tax. Additionally, if you need additional funds, assets in a revocable trust can be accessed. Your trustee can make distributions on your behalf, pay bills and even file tax returns for you. Unlike an irrevocable trust, funds in this trust are not protected from lawsuits or creditors.
NAME A TRUSTEE
You will name who you want to manage the assets when you establish the trust. Choosing a professional, as opposed to a family member, can safeguard your loved ones from making decisions without knowing your wishes during difficult times.
GET IT RIGHT
Trusts are complicated. Work with your tax advior and an estate planning attorney to draft your estate documents properly.
Estate planning is the process that allows you to designate what happens to your assets when you become incapacitated or die. Using a checklist can help you get started.
1. TAKE INVENTORY
Make a complete list of all your assets. While you’ll want to include the obvious ones like your home and bank accounts, don’t forget about other valuables like jewelry and artwork. And if you have any recent appraisals for your home or jewelry, use those to estimate the value of your assets.
2. REVIEW YOUR NEEDS
Do you have children that you need to provide for and are they young enough that you need to name a guardian for them? Do you have enough life insurance to support your family, if needed? Take a careful look at what your family will need and talk with your financial professional to initiate a plan.
3. CREATE DIRECTIONS
You’ll want to ensure that all your directives are current, in writing and in compliance with your state’s laws. A trust can help you bypass the probate process and provide control of how your assets are distributed. A medical directive, also called a living will, lays out your medical wishes in the event you are unable to make decisions for yourself. And a durable power of attorney allows you to appoint someone to handle your financial affairs if you’re unable to do so for yourself.
4. REVIEW DESIGNATED BENEFICIARIES
It’s good to review your beneficiaries regularly and certainly after major life events, like having a baby or getting married. Ensure the beneficiary information on life insurance and retirement accounts align with your will. If there are differing beneficiaries, your state’s laws may dictate that designated account beneficiaries trump what your will says.
While the federal estate tax basic exclusion amount has risen dramatically in recent years, some states have not followed suit by raising their exemptions. Even with higher current exemptions, the future of taxes is unpredictable, so you need a strategy to deal with potential estate taxes if you own significant assets. A trust could be part of that strategy.
CONTROL AND PRIVACY
A trust can help you control when and how assets are used during your lifetime. And when estate taxes aren’t an issue, a revocable trust may offer an attractive option. (It is revocable because you can change its terms or cancel it.)
Trusts, both of the revocable and irrevocable variety, shield their assets from the public glare of probate. One caveat: Only those assets owned by the trust avoid probate, so you’ll have to change the title of any assets you move. Both types of trusts can also include terms and conditions that deal with potential incapacitation.
And even when taxes aren’t an issue, you may want to consider trusts that can offer you more control over how and when adult special-needs and spendthrift children receive assets during their lifetimes.
While all trusts provide a measure of privacy and control, revocable trusts won’t provide tax advantages. However, an irrevocable trust will. The federal estate tax exclusion, now more than $11 million per person, was half that just three years ago and below $1 million two decades ago. As governments seek revenue, know that taxes can rise as easily as they fall.
Regardless, some states offer the same exemption allowed by the federal government, but others decouple their rates – some to as low as a $1 million exemption. Other states levy separate inheritance taxes, too. So if you have assets you want to pass to future generations, talk to an estate planning attorney and your tax professional to learn more about trusts.
Rosa has a large estate that greatly benefitted from the federal tax changes at the end of 2017, but she worries about the tax breaks expiring and estate and gift tax exemptions reverting to 2017 levels. What should she do?
First, Rosa can worry less about the tax expiring because the IRS recently announced that taking advantage of the increased gift and estate tax basic exclusion amounts in effect since 2018 won’t result in a clawback if the exclusion amount drops back to pre-2018 levels in 2026, as scheduled.
A special rule will allow estates to compute their estate tax credit using the higher of the basic exclusion amount applicable to gifts made during life or the exclusion applicable on the date of death. This should calm Rosa’s worries.
Even with this increased certainty, Rosa might still take advantage of the annual gift tax exclusion, which in 2020 is $15,000 per donor per recipient to as many people as she would like until reaching the lifetime limit. And she should also consult a person experienced with estate planning issues.
Client Profile is based on a hypothetical situation. The solutions we discuss may or may not be appropriate for you.