The basic question many people have about estate planning is: Should I plan with a will, or a trust?
If you create a revocable trust and it is properly funded, then the proceedings in court will be substantially minimized, if not completely avoided. The reason is that assets titled in a revocable trust do not go through probate.
What does that mean? It means that these assets are “non-probate” assets. This means the trustee (or successor trustee) has sole and immediate authority and responsibility regarding trust assets.
With a little bit of counsel and assistance, the administration can be made much easier and much less costly.
With a revocable trust, you can also spell out, within the revocable trust, the terms of trusts that will serve as metaphorical containers for assets you leave to loved ones.
This allows you to shape beneficial interests and use the law to protect these assets from loss to in-laws, loved ones’ own indiscretions, and estate taxes; this also permits you to ensure your assets will stay in your family.
There are two exception creditors that can reach assets in a spendthrift trust (a trust with a spendthrift clause): the IRS, and a child who is owed child support payments.
Having the trust is not enough, though. Careful attention, usually with the assistance of your attorney, is necessary to make sure assets that would otherwise be probate assets are titled in your trust. This is where many plans fail.
Close attention needs to be paid to matters such as titling of assets and beneficiary designations so as to ensure the plan will work.
For instance, if you have a life insurance policy or IRA that says on the beneficiary designation form that Jane is the beneficiary and your will or trust says all is to go to Elaine, then guess who gets the life insurance proceeds? Jane does.
Why? Because the beneficiary designation controls, not the will.
Every case is a sort of puzzle where we structure assets so as to avoid all the known problems that can emerge.
Benjamin Franklin once said, “A penny saved is a penny earned.” It could also be said that an estate well planned for with revocable trusts is an estate saved from many unnecessary expenses and headache.
Mark F. Winn, J.D., Master of Laws (LL.M.) in estate planning, is a local asset protection, estate planning and elder law attorney. www.mwinnesq.com