In the last post I promised to tell you a little more about trusts. Ok – here we go!
As I said before, trusts have gotten a bad reputation. Many people hear the word trust and their eyes glaze over as they form a mental image of huge hundred page long documents crammed with wherefore and henceforth clauses that would numb the mind of even the most stalwart legal scholar.
At least not all the time. Sure, there are some long, complicated trust agreements floating around, but that certainly is not a prerequisite. For every long cumbersome trust document, there are dozens of straightforward, easy to read and easy to understand trusts. Let’s talk about them.
First, everybody tosses around the term trust, but often, they don’t even really understand what a trust is. The term has that “sophisticated” and “complicated” connotation. That’s really not true.
A trust is nothing more than a kind of contract or agreement. What sets a trust apart from most contracts is that it is a three way deal. You have the person creating the trust. That’s the trustor, or settlor. You have the guy handling the trust. That’s the trustee. And you have the person or thing the trust was created for. That’s the trust beneficiary, or just the beneficiary. The gist of a trust is that the trustor (or settlor) gives something to the trustee to take care of or manage for the benefit of the beneficiary. That’s it. There is no mystery to a trust. Every trust has these parties and operates in this way. What can and does change is the complexity of this three way deal.
A trust can be as simple as: You owe your friend $50. You go by his house but he’s not there. You leave the $50 with his wife and tell her to give it to him when he gets back. Viola!! You’ve created a trust. You’re the trustor. Your friend’s wife is the trustee, and your friend is the beneficiary. Yes, you gave her the $50, but it was not for her. It was for her to hold for the benefit of someone else. All the necessary ingredients of a trust and this is just as much a trust as some agreement created by a trust company consisting of page after page of legalese!
So why are there even these long, cumbersome trust agreements and documents. Because that is the very power of a trust. You can make it as simple or as detailed and complicated as you like. You might want your friend to receive the $50, but only after a certain time. Or only after he has done something. The fact that you can write a trust agreement to account for such conditions or requirements is what makes a trust such a powerful tool.
Trust are not limited to estate planning. Sure, you can have trusts that don’t do anything until you die, but that’s not a requirement. You can have a trust that you use for your own purposes, which upon your death will also function to manage and distribute your assets far better than a will.
Trusts are private. Unlike a will, which must be filed in order to complete probate, there is no requirement whatsoever to make public the terms of a trust agreement. Trust beneficiaries may be entitled to a copy of the trust, but someone not a party (that is not a trustor, trustee or beneficiary) has no right whatsoever to see the trust. If you dispose of your estate via a will, Aunt Edna will be able to see what you left to Aunt Beth.
To ice he cake a little further, a trust does not have to have anything in it when it is created. It can be created in order to receive certain assets or property at a later time. This can be an incredibly valuable asset protection tool.
Still another advantage of a trust is that it really is an entity in and of itself and thus its operation is not significantly affected if one of the parties passes away or experiences other adverse events. While transfers to a trust may be subject to laws against fraudulent transfers, or subject to claims of a bankruptcy court, even those disappear when enough time has passed. The trustor dies? No problem – doesn’t affect the trust. The trustee dies? No problem – a successor trustee steps in. A trust beneficiary dies? Again, no problem. A properly drafted trust agreement will take that into account. The point here is the trust provides stability and predictability and eliminates uncertainty.
One of the issues that people have with trusts is that they are perceived ass complex, difficult and expensive to set up. This is simply not the case. Yes, it is true that if you are so inclined, you can go hire an expensive estate planning attorney and spend thousands of dollars to establish a trust. But you don’t have to! A little reading and looking on the internet and you can find all sorts of templates and forms for whatever kind of trust you would like to set up. Many banks and financial institutions have their own trust forms. And while they cannot create a trust for you, since that would subject them to unauthorized practice of law issues, they can make the forms available.
The bottom line is that a trust is a powerful tool not only for estate planning, but for managing financial matters during your life. A trust provides versatility and privacy that you just can’t get with a last will and testament. Anyone planning their estate, with an estate consisting of anything beyond basic items of personal property and property that will automatically pass via survivorship, should consider a trust.