Trusts
A trust is a legal arrangement in which someone agrees to hold and manage
property for the benefit of another. With a trust, three parties are involved:
the one who transfers the property to the trust (called the grantor), the one
who has the responsibility for managing the property (the trustee), and the one
for whose benefit the trust is established (the beneficiary).
Because of the historical development of trusts and the state law rules that
govern them, the courts are much more likely to give effect to the transfer of
broad powers to a trustee than they would to an executor. This means that trusts
can be extremely flexible estate planning tools. Unlike your will, which becomes
a public document when admitted to probate, trust arrangements — even those
that are closely tied into an asset transfer from a will — can be kept from
the public eye.
Here, we discuss using trusts to benefit someone without transferring to him
or her the full control over the trust assets. (Tax-minimizing
techniques using trusts are discussed elsewhere.) You might want to consider
using a trust to:
- Give a beneficiary the full lifetime benefit of property (such as the
income generated by property, or the right to reside in a residence), with
the property to go to another person after the first beneficiary's death.
This is often done to ensure that, if a grantor's spouse remarries, his or
her children — rather than the spouse's second husband or wife — will
ultimately receive the property.
- Restrict the benefits of trust assets to a beneficiary beyond the age of
majority. Generally speaking, once a minor who acquires property by a will
reaches the age of majority (18 or 21 in most states), he or she will have
full, unrestricted use of the property. Maybe you think that a particular
beneficiary will not be ready to assume responsibility for property
ownership at this age. Restrictions
on property use made by will may be difficult or impossible to enforce
and may increase probate costs. A trust, however, can provide for partial
distributions, and can delay the ultimate distribution to the beneficiary to
an age well beyond 18 or 21. For instance, you could set up a trust that
would give the beneficiary the income of the trust immediately, and 1/3 of
the principal at ages 25, 30, and 35.
- Protect a person "from himself." These type of trusts (commonly
called "spendthrift trusts") give the trustee the power to
withhold payments to the beneficiary in case the beneficiary has legal
judgments or claims against him or her. While the assets remain in the
trust, they generally cannot be reached by the beneficiary's creditors. The
idea here is to withhold payments to the beneficiary until his or her credit
problems have been cleaned up, or until the claims have become
unenforceable.
- Influence a person's behavior. You can create a trust that gives your
trustee broad discretionary powers to decide when distributions of income
and principal are to be made to the beneficiaries. In this way, the trustee
can hold out the carrot of distributions to the beneficiaries to nudge them
in the direction that you want them to go (such as providing for a
distribution of property when the beneficiary has been drug or alcohol free
for a specified time). Although the courts generally will give you more
latitude in setting conditions in a trust document than they would in a will
or a document of title, a court can still refuse to enforce a trust
provision that it finds to be against public policy. Further, because a
trustee may be held personally liable if the trustee is determined to
have breached a fiduciary duty regarding the trust property — such as
paying, or failing to pay out, distributions — you may find it difficult
to get a qualified individual or corporate fiduciary who will be willing to
serve as trustee for a trust having such discretionary powers. And if you do
find such a trustee, you can expect the fee charged to be larger than for
some other types of trusts.
In summary, trusts can offer the flexibility of withholding full property
ownership in instances where you want to safeguard the ultimate distribution of
the property to another, or where you want to temporarily withhold such full
ownership rights. They also can be used to attempt to influence other's
behavior, but such uses are not always enforceable.
In any case, don't forget that trust arrangements cost money: money for an
attorney to draft them, and yearly fiduciary fees to the trustee for managing
the trust property. Be sure that you have good reasons to incur these additional
costs before you decide to go the trust route.