When you use a trust, you bypass probate, a lengthy legal process that validates your will, and you leave precise, legally binding instructions for how to distribute and potentially maintain your assets. Have a beneficiary with special needs who's ill equipped to manage the inheritance? Bequeathing complex assets that require ongoing attention after you're gone? A trust can help.
But trusts are not without their minefields. Here are some common problems to avoid:
You fail to fund your trust — Don't leave the trust empty. It sounds silly — you meet with the attorney, formalize your wishes and then you don't fund the trust. Any assets that aren't appropriately titled may have to go through probate. Don't create a pour-over will, in which you decree that the property in your estate should be distributed to the trust, in order to avoid probate. It makes sure assets eventually end up in your trust — after the probate process has concluded.
Choosing the wrong trustee — Even if you act as the trustee of your trust during your lifetime, you'll need someone else to manage the assets and execute transactions after your passing. You probably figure you'll get your kids to do this — but make sure this doesn't lead to conflicts among siblings who have different points of view. Perhaps you can consider appointing a close family friend or corporate trustee instead. You can even combine an individual and a corporate trustee as co-trustees.
Think about where the trustee resides — Some states tax the income from trusts administered in their states. Also, some states offer better protection from creditors than others do. Talk with an attorney about the most appropriate place to set up your trust.
Underestimating financial needs — Are you concentrating on portioning out rather than what your heirs might need? Part of your process should be understanding the assumptions that underpin your planning. Account for different scenarios. You don't want your loved ones to run out of funds. How about thinking of the costs your beneficiaries might incur to maintain cherished but nonfinancial assets like property. Most houses require repairs and general upkeep — the costs might be considerable for higher-priced residences.
Failing to update your trust — Unless you've decided on an irrevocable trust that generally can't be modified or revoked, you may want to periodically make changes to your trust as circumstances require it. There may be a death or divorce. Are the ages that your children and grandchildren receive their inheritances still appropriate? Ensure that the people appointed as guardians for minor kids are still willing to take on the responsibilities. Meet with your estate-planning attorney at least once every three-to-five years to address any changes. Stay on top of changes to tax laws that may affect how your assets are treated and in return impact your planning.
When designed well, a trust can help your heirs bypass costs, delays and headaches. Your wishes are only as good as the trust designed to implement them. Avoiding mistakes when setting up trusts will sidestep finding out that your trust doesn't do what you need it to do. A wrong move can invalidate your trust. Seek help from an experienced trust and estate planning attorney.
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