IIAR

SUMMARY:
A revocable living trust can be a useful and practical estate planning tool for certain individuals, but not for everyone. This type of trust is most commonly used to avoid probate because, unlike property that passes by will, trust assets are distributed directly to heirs. This type of trust is also used as a way to maintain management of one’s financial affairs during a period of incapacity because someone else can immediately take charge when needed. A revocable living trust does not minimize income, gift, or estate taxes, nor does it shelter trust assets from creditors in most cases.

WHAT IS A REVOCABLE LIVING TRUST?

A revocable living trust (also known as an inter vivos trust) is a separate legal entity created to own property, such as a home or investments. The trust is revocable, which means that during the grantor’s lifetime (the grantor is the person who originally owns the property and creates the trust), he or she controls the trust. Whenever the grantor wishes, he or she can change the trust terms, transfer property in and out of the trust, or end the trust altogether. The trust is called a living trust because it’s meant to function while the grantor is alive. The trust can continue after the grantor’s death, but the trust becomes irrevocable the moment the grantor dies.

Revocable living trusts are used to accomplish various purposes:

• To ensure that property continues to be properly managed in the event the grantor becomes incapacitated
• To reduce costs and time delays by avoiding probate
• To lessen potential challenges to or elections against a will
• To maintain privacy
• To avoid ancillary administration of out-of-state assets

HOW DOES A LIVING TRUST WORK?

Typically, an individual creates and funds the trust, and names himself or herself as both the trustee and sole beneficiary for his or her lifetime (if married, both spouses are typically named beneficiaries). The grantor also names a successor trustee or co-trustee, as well as the beneficiaries who will receive any assets that remain in the trust at the grantor’s death. Often, a spouse or child is named as the successor or co-trustee and is also named as an ultimate beneficiary.

Caution: In some states, a co-trustee is required.The grantor continues to manage trust assets during his or her life. Any income earned or expenses incurred by the trust flow through to the grantor on the grantor’s individual income tax return. A separate return for the trust is not necessary. In the event the grantor becomes incapacitated (e.g., from illness or injury), the successor trustee or co-trustee can immediately step in to take over the management of the trust on the grantor’s behalf, avoiding the need for the grantor’s spouse or other family members to petition the court to appoint a guardian. At the grantor’s death, assets remaining in the trust pass directly to the beneficiaries, bypassing the probate process. This can save time and money and can minimize some of the burdens of settling the grantor’s estate.

Tip: If special knowledge or skill is required to manage property in the trust, the successor or co-trustee should be qualified.

Funding the trust

To ensure that the trust fulfills its objectives, the trust must be funded after it is created. Funding the trust means transferring legal title from the grantor into the name of the trust. This may entail recording a new deed for real estate; retitling cars and trucks; renaming checking, savings, and investment portfolio accounts; transferring life insurance policies, stocks, and bonds; executing new beneficiary designation forms; or executing assignments.

Although a revocable living trust can be funded with virtually any kind of property, including personal property, special consideration should be made before transferring certain types of property, including:

• Incentive stock options
• Section 1244 stock
• Professional corporations

  Tip: Transfers to the trust are not considered gifts, so the grantor doesn’t need to file a gift tax return.

Caution: Some states will reassess the value of a home for property tax purposes when it is transferred to a trust. Some states will disallow income tax deductions related to the home if it is owned by a trust.

Caution: Some banks may impose a penalty when certificates of deposits (CDs) are transferred to a trust because they consider such transfers to be early withdrawals.

ADVANTAGES

Typically, the grantor names himself or herself as the trustee and someone the grantor trusts or a professional trustee is named as co-trustee or successor trustee. So, if the grantor should become unable to manage the trust assets for whatever reason, the co-trustee or successor trustee can immediately take over control and continue managing the assets with little or no lapse in between. This can be very important with certain types of assets that require frequent attention to maintain their value, such as rental property or a securities portfolio.

Avoids probate

The grantor and the grantor’s spouse are typically named as the sole beneficiaries of the trust during their lives, and at their deaths, any assets remaining in the trust pass to the grantor’s named beneficiaries, usually children and grandchildren. If the grantor can and does transfer all of his or her assets in this way, having a will becomes unnecessary. Since assets passing by a trust are not subject to probate as assets that pass by will are, distributions to beneficiaries can be made more quickly (and they are often needed quickly). Further, bypassing probate will save the grantor’s estate any costs that would have otherwise been incurred, such as filing fees and attorney’s fees. And, finally, the grantor’s family will be spared any burden that would be associated with the probate process, such as petitioning the court and organizing documents for filing.

Caution: Bypassing probate may not be an appropriate goal for some individuals. For example, smaller estates may qualify for an expedited probate process or be exempt from probate altogether. In some cases, the costs associated with a living trust may be greater than the costs associated with probate. And, under certain circumstances, the court’s oversight of the estate settlement during the

DISADVANTAGES

Though a living trust is a separate legal entity, it is not a separate taxpayer during the grantor’s lifetime. The grantor is considered the owner of the trust assets for tax purposes. All income and expenses generated by trust property flow through to the grantor and must be reported on the grantor’s personal income tax return. However, upon the grantor’s death, the trust becomes a separate taxpayer and different income tax rules apply. Further, assets in the trust will be included in the grantor’s gross estate, generally at their date of death value, for estate tax purposes. Therefore, a revocable living trust cannot be used as a way to minimize taxes.

Does not shelter assets from creditors

Generally, assets in a revocable trust are deemed to be owned by the grantor and are therefore reachable by creditors (although, in some states, the assets may not be reachable by Medicaid recovery after the look-back period expires).

IMPORTANT DISCLOSURES

The IIAR and ARF reserve investment funds are currently managed by Stifel Financial Services under the investment policy established by their respective board of directors. Members of IIAR may use the services of Stifel for personal and business investments and take advantage of the reduced rate structure offered with IIAR membership.

For additional wealth planning assistance, contact your Stifel representative: Jeff Howard or Jim Lenaghan at(251) 340-5044. Stifel does not provide legal or tax advice. You should consult with your legal and tax advisors regarding your particular situation.

These materials are provided for general information and educational purposes based upon publicly available information from sources believed to be reliable — we cannot assure the accuracy or completeness of these materials. The information in these materials may change at any time and without notice.