5 Things to Consider Before You Create a Trust

setting up a living trust

You’ve worked hard to build up your property and your savings. What’s the best way to protect your estate and pass it on to your heirs?

You could write a will, but a will has its drawbacks. An estate can be tied up in probate for months, with fees eating up some of the inheritance. People concerned about these issues have another option: creating a revocable trust.

Here are 5 things to consider when setting up a revocable trust.

1. What Is a Revocable Trust

A revocable trust is a legal arrangement in which an individual (the settlor) shifts ownership of personal property into the legal ownership of the trust. This property can include all types of assets, including land, bank accounts, houses, jewelry, or intellectual property. A revocable trust can be set up at any point and can also be changed or dismantled if desired.

The trust is overseen by a trustee, who may be a family member or friend, a corporation, a bank, or the person who originally created the trust. 

The trust agreement documents the settlor’s instructions, including how the assets are to be managed, who receives income from the trust, and who the beneficiaries are.

The trust names the beneficiaries that will inherit at the termination of the trust, such as when the settlor passes away. The beneficiaries could be individuals, such as friends and family members, or organizations, such as charities.

2. Differences Between a Revocable Trust and a Will

When choosing whether to create a revocable trust or a will, there are many aspects to consider.

Going Through Probate 

The main reason people chose to establish a living trust is to bypass probate, the process through which the courts oversee the distribution of property from a will. Since a revocable trust does not go through probate, it can sometimes be settled faster, and can save the costs of the probate process.

When a will is executed, going through probate can take a year or longer, and the personal representative in charge of the will might need to report regularly back to the courts. The estate must also pay probate costs, such as fees owed to executors, attorneys, or accountants. These fees can add up to 5-10% of the total estate.

Fees

Since the creation of a revocable trust requires a property to be listed and then transferred to the living trust, the process of setting up a living trust can be much more expensive than writing a will.

Creating a Will and a Trust

In most situations, you will need to create both a will and a trust.

A will created in addition to a revocable trust can address the distribution of all assets not included in the trust. In one simple type of will, a “pour-over will,” everything that hasn’t been assigned to the trust gets “poured” into it, including property that was not originally transferred to the trust, or property that was acquired after the trust was created.

3. Revocable versus Irrevocable Trusts

There is another type of trust commonly used in estate planning: irrevocable trusts.

A revocable trust transfers ownership of estates and assets to the trust, but the settlor keeps the power to change or terminate the revocable trust.

An irrevocable trust permanently transfers ownership of assets to the trust. The settlor cannot revoke the trust or control the property. For this reason, most people choose a revocable trust instead. However, some people favor an irrevocable trust because it can assist in nursing home planning.

4. Transferring Assets to the Trust

Since a revocable trust holds the estate and assets of the settlor, it takes a lot of paperwork to set up a trust. 

When creating a trust, make a list of all the assets you own. This can include the land you own, large items like your home or car, small items such as your jewelry, or financial assets such as stocks and life insurance properties.

Once you have listed your assets, you will need to find paperwork for all the assets, including automobile titles, property deeds, stock certificates, or life insurance information. Some of this paperwork will need to be redone as you transfer your assets to the trust. For instance, after you set up a living trust you will need to get a new deed for your house, showing that the house is the property of the revocable trust.

After the assets have been placed in a trust, the settlor can allow a trustee to manage the estate and administration work. This is one reason people choose revocable trusts.

5. Providing for Minor Children

If you have children who are under 18 years old, you must create a will to name legal guardians for your children in the event of your death. You cannot name a legal guardian for a child in a revocable trust. 

However, you can set up a child’s subtrust within a revocable trust. In this case, the successor trustee would manage the property you leave to the child. 

Setting up a Revocable Trust

If creating a revocable trust seems like the best way to protect your assets, our team can advise you on all the details that go into the creation of a trust. Contact us to learn more.

What is a revocable living trust?

Estate planning worksheet for writing a willA revocable living trust in an estate planning document used to list the assets and express wishes for distribution. An experienced lawyer can draft a revocable living trust with specific instructions provided by the guarantor. Unlike an irrevocable living trust, a revocable living trust can be revoked at any time by the guarantor.

In a revocable living trust, certain assets are placed into a living trust. There are three parties named for management and distribution of the assets: a guarantor, trustee, and beneficiary (or beneficiaries). A guarantor is the owner of the assets. A trustee, either corporate or individual, is named to manage the assets. Beneficiaries are parties named to receive assets. Typically, while the owner of the assets is alive and competent, the guarantor is designated trustee. If the owner would become incapacitated, such as from a serious illness, a living trust contains specific directions for the trustee to manage the assets.

When the guarantor passes away, the living trust contains directions for the trustee to distribute assets to beneficiaries. In Wisconsin, a living trust incurs the same estate taxes as a will. If only certain assets are placed into a living trust, a guarantor may need to draft a will in addition to a living trust. Instructions for guardianship of minors should also be included in a will; detailed wishes for support of those minors can be included in the revocable living trust document. Unlike a will, a living trust does not need to go through the court-supervised probate process and is a private document. The biggest benefit of a revocable living trust, when compared to a will, is that all assets named in the trust do not have to go through probate, which can take longer for distribution and incur more costs.

A revocable living trust can be modified or revoked after drafting. Contact a lawyer for information on how to modify the living trust, and what is needed for the change. Typically, changes cannot be made when the estate owner passes away.

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