Articles Posted in Trusts

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Last week I started writing about moving trusts from one state to another. In today’s post, I’ll share a few more things to consider if you are moving from one state to another, including the way states may treat marital property differently.

States Treat Marital Property Differently

Although most states are common law states which allow marital property to be owned separately, there are several community property states. In community property states, all of the property owned by marital partners is deemed equally shared, including property that is only titled in one spouse’s name.

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If you have a revocable living trust and decide to move from one state to another, your trust should remain valid in your new state. Though the validity of this trust won’t be affected, you might want to make some changes to it since different states can have different laws regarding things such as marital property. Also, if you are moving into a new home you are buying, you will need to transfer this asset to the trust. Below is more information about trusts and moving a trust to a new state:

Using Trusts in Estate Planning

Revocable living trusts are often used in estate plans to help shelter assets from probate, to protect private finances from public scrutiny, and to provide additional control over the disposition of assets after the owner has passed away. Trusts can save money and time when it comes to settling an estate, and they can help ensure that dependents and charities are supported.

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Although we may think of phishing emails, robocalls, or other types of scams when we think about financial exploitation, it is far more common for this type of exploitation to be done by relatives, caregivers, neighbors, or friends someone believed they could trust. Financial exploitation is more common than most people realize, but understanding financial abuse and strategies can help people avoid being exploited.

Several studies have shown that individuals who have a cognitive impairment, are in poor physical health, are isolated, or have a learning disability may be more at risk for financial abuse.

Studies have also revealed common characteristics of individuals who financially exploit others, including those who have substance abuse issues, mental illness, or who are financially dependent on the person they are exploiting.

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A lot of people are part of a blended family. It’s important for those in this type of family to make sure that stepchildren are incorporated into their estate planning process.

Many stepparents love and care for their stepchildren as their own children, and they may not be aware that this emotional bond is not one that is protected by law. Laws of inheritance do not apply to stepchildren unless they are formally adopted. Without a legal relationship to your step children, you will need to be clear in your estate plan that you wish for your estate to benefit them.

Often, remaining property is left to children equally in estate plans. However, this type of language only applies to biological and adopted children. Although people believe their family will understand the decedent’s wishes and share things evenly, this is not always the case.

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People with revocable living trusts often name a family member (spouse, oldest child, etc.) as their successor trustee. The successor trustee is who takes over the administrative duties for the trust in the event you become incapacitated or die.

However, naming only one successor is probably not enough. It is better to name a secondary successor trustee in case the first one is unable to serve as trustee when the time actually arrives. There are a number of reasons this may happen, including the following:

You could both be injured or die in a common accident

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It’s rare for an estate plan to be put together and never be changed. Wills and trusts usually need to be changed over time as your circumstances, states of residence, and desired outcomes shift. It is important to know how you can properly change your will or trust so that these revisions will be enforced.

Writing on your will or trust to edit or amend it or attaching a hand-written addendum to this document isn’t a good idea. States have different requirements for how to change a will or trust, so it’s important to learn what is considered legally valid in your state.

For a will, a legally enforceable change can be accomplished by replacing the prior will document with an entirely new one (you’ll also want to explicitly state in the new document that all prior wills are revoked and replaced) or by adding a document called a codicil to the old will document. The codicil should specify exactly what part of the old document is being changed, and it will often reaffirm the other terms of the old will document that remain unchanged.

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As is the case with many questions regarding legal matters, this depends on some different factors. It is more simple to name your spouse directly, and your spouse could then convert your retirement plans to their IRA and take withdrawals on their schedule.

That being said, trusts have a number of advantages. Trusts can provide a lot of protections, including greater creditor protection compared to retirement funds, protection in the event your spouse becomes incapacitated, protection from scams (as seniors are often targeted), and protection of assets from having to be spent paying for long-term care. They can also preserve funds that are not needed by your spouse for your children.

Trusts can also be a useful estate planning tool. As the threshold is just over $12 million, most Americans don’t need to worry about the federal estate tax. However, many states have their own estate taxes, including some with the threshold as low as $1 million. A trust can protect this amount from being taxed following the death of the survivor of yourself and your spouse.

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Do you own real property in multiple states? Perhaps you are a snowbird or own investment properties such as rentals in more than one state. If you do, your estate will likely be required to go through probate in each state where you own real property at the time of your death. Probate isn’t necessarily a bad thing, but it is often very time consuming and can quickly become expensive with court costs and lawyer’s fees. In cases where real property is owned in multiple states, that would mean going through probates in each of those states.

However, there are a number of methods that can be used to try to avoid probate:

One method is to add the intended heirs to the title of the real estate while the primary owners are still alive. However, this is not often advised. If any of the intended heirs (who then become co-owners of the real estate) get into financial trouble – such as bankruptcy, divorce, being sued, creditor issues, etc. – the primary owners of the real estate also become involved in their financial trouble. Parents shouldn’t lose their home or other properties because their child was sued by another person.

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Having a pet brings many people joy and provides them with a living creature to take care of and to provide companionship. Unfortunately, pets are often overlooked in people’s plans for incapacity or death.

The types of animals that one has as well of the needs of those animals should be considered carefully when preparing a last will and testament or trust. The responsibility of caring for a small indoor pet is very different from that of a large barnyard animal.

When considering a potential caregiver for your animals, you’ll want to make sure this person has the desire, ability, and available space to take good care of your pets. Also consider the other people who live in their home, taking into account their like or dislike of animals and if anyone in the house may be allergic to the types of pets you have. Also, does this person already have other animals? Someone who already has pets may have a better idea of the time and money needed to take care of your animals, but it may be more difficult for everyone to adjust in this case.

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When it comes to estate planning, families with special needs children need to take extra care to prepare for when you will no longer be around to care for your child. As part of an estate plan designed to help enhance and enrich your child’s life both in the present and into the future, you may want to consider a Special Needs Trust.

A Special Needs Trust allows individuals with disabilities to receive funds needed to supplement their benefits, have a greater quality of life, and cover unexpected expenses without losing their benefits. This can be created for someone with physical and mental disabilities and/or with mental illness. There are three different types of Special Needs Trusts that can be created, and they differ in who creates the trust, who is trustee, and what happens to the remaining assets in the trust after the death of the beneficiary.

Unfortunately, people often lose their SSI, Medicaid, or other benefits after inheriting life insurance, real estate, or other assets. Special needs planning works to prevent this from happening and to preserve these benefits. It also can be used to provide lifetime money management for benefit of the disabled child, protect eligibility for public benefits, and ensure a pool of funds if public funding ever ceases or is restricted.

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