So what happens to living trusts after death? Before we dive into that, it’s important to have an understanding of trusts overall.
Introduction to Trusts
What are trusts? How do they work?
Trusts can provide enormous flexibility and control to the creator’s wishes with respect to the devise of trust property to the creator and his or her beneficiaries.
This includes who receives it, when they receive it, how they receive it, under what conditions they receive it, all of which can happen both during the creator’s life and after death. Trusts enable you to protect assets and ensure they remain in the family. You can also provide for irresponsible beneficiaries as well as those with substance abuse or special needs. Learn more by checking out the video below.
Who are the Relevant Parties to a Trust?
One of the first steps in the process of understanding trusts is knowing who is involved and what their roles and responsibilities are.
When you create a trust to protect, grow, and distribute your assets, it involves a number of parties. These parties each perform different necessary roles and have individual responsibilities. In order for a trust to work, all of the relevant parties have to do their job.
So, who are the relevant parties to a trust?
Also known in some cases as the Trustor, Settlor, or Donor. This title refers to the person, couple, or entity that owns the assets to be put into the trust. Any asset can be placed into a trust: antique items, art, investments, real estate, savings accounts, vehicles, and so on.
The Grantor is legally required to name a specific person who is to benefit from the assets held in the trust.
A beneficiary is the person, people, or organizations who benefit from the assets held in the trust. The trust is primarily for his/her/their benefit. It is managed by the trustee for that purpose and based on an elevated standard of care called “fiduciary duty”.
These are the individuals designated as the responsible party for controlling the assets in the trust. And depending on the nature of the trust, they can have a lot of power over what is done with the assets.
Trustees have a fiduciary duty to manage the assets in the estate for the benefit of the beneficiaries. And they are at the risk of being personally liable for failing to do so.
For example, they could decide to loan artwork in the trust out to museums. Or they could rent out real estate. Their actions need to show that they are attempting to grow the assets and act in the best interest of the trust.
For some trusts, the Grantor will name him or herself as Trustee while they are still alive. In these situations, the Trustees who take over after they pass away are called alternate or Successor Trustees.
A Successor Trustee could also be named in the event that the initial Trustee is unable to fulfill their duties. In either situation, the role of the Successor Trustee is identical to the role of a regular Trustee.
A Trust Protector’s job is to – you guessed it – protect the trust. Trust protectors were originally used for tax purposes. Today, however, they are used in a variety of different trusts by people of varying socio-economic status. As a result, they absolutely must be properly drafted to be able to navigate a changing and unpredictable environment relating to taxes, law, family dynamic, and market fluctuations.
Some powers a Trust Protector may have include:
- The ability to remove a trustee and have them replaced with someone else (not themselves).
- The power to amend the trust if there are changes in the law that would adversely affect it.
- The power to resolve disputes (between trustees if there are multiple people or entities acting as trustees, or between trustees and one or more of the beneficiaries).
- The ability to alter trust distributions if there are changes to a beneficiary’s life.
- The power to add new beneficiaries to the trust (for example, if there are additional descendants).
- The ability to veto investment decisions.
- The ability to provide oversight to a beneficiary who is also the trustee.
It’s crucial to ensure that you have named your relevant parties to a trust and understand their roles in order to protect your assets.
Trust Administration: Distributions, Protections, and Understanding the Duties and Responsibilities of Trustees
How do trust distributions work? What kinds of protections do beneficiaries have? What about protections for the trust from beneficiaries? Below, we have detailed a number of options, specific to the administration of trusts in Florida.
Distributions of Trust Property
The assets of the trust are distributed to beneficiaries as directed by the creator of the trust. And the Trustee may make distributions of income and principal of the trust to the beneficiary or beneficiaries as frequently or infrequently as they desire. Other times, the trust will dictate exactly when the trust income and/or principal is to be distributed to the beneficiary or beneficiaries.
For example, specific events can trigger distributions and divisions of the trust estate, such as the death of the creator or a beneficiary reaching a certain age. But there will be clauses in any trust agreement that leave certain decisions subject to the discretion of the Trustee. Discretion is particularly common in situations where the beneficiary is a close family member, such as a spouse, child, or parent.
As mentioned in the video above, the most common provisions are in the discretionary standard known as HEMS (or health, education, maintenance, and support), which is a term widely used in estate planning. It means that health-related expenses of a beneficiary can be paid for using trust assets, including both regular and usual expenses (health insurance, dental exams, etc.) and irregular and unusual expenses (emergency treatments, expenses not covered by insurance, etc.).
And the Trustee may distribute income or principal to a beneficiary for tuition, career training classes, and books, but also for costs of living (rent and food, for example), as part of the educational expenses. The most discretionary provisions are those for maintenance and support, which allow for distributions for everything from living expenses, property taxes, and vehicle needs, to the cost of regular social activities or vacations.
A purely discretionary trust will have the most protection, provided the beneficiary is not also the trustee. But even still there are ways around that. Asset protection is a delicate balance between protection and control.
A lesser form of discretion is the HEMS standard, which originates from a tax context. HEMS can arguably be used as a discretionary standard to protect a beneficiary from creditors of a beneficiary who would otherwise be able to force trust distributions for the benefit of the creditors.
The creator of a trust may also add additional protections by disallowing a former spouse of a beneficiary from receiving any benefits from the trust assets, and/or add a clause that empowers the Trustee to stop distributions of trust assets to a beneficiary, if a beneficiary:
- Is abusing alcohol or narcotics
- Has a gambling problem
- Is incarcerated
- Develops a disability
- Is acting in a way that shows total disregard of morality
- Any other behaviors or scenarios that a grantor may choose
What About Revocable Living Trusts?
Simply put, “revocable” means that the person who created it can continue to make changes to it while they are still alive. They can even cancel it altogether. This is in contrast to an irrevocable living trust, which is essentially set in stone the moment you create it.
Benefits to a Revocable Living Trust
There are a number of benefits to setting up a revocable living trust.
You can change your mind. As mentioned above, if you’re choosing between a revocable living trust and an irrevocable one, a big consideration should be the fact that the irrevocable trust generally cannot be changed. So, for example, if you set up an irrevocable trust for your wife and then later get divorced, those assets are lost to you unless the trust was carefully crafted to foresee that contingency.
You can skip probate. Probably the biggest reason people put their assets into trusts in general is the ability to bypass guardianship and probate. Probate is the legal process of settling your estate, and it can cost your loved ones thousands of dollars. Moreover, it can be lengthy and stressful, sometimes taking a year or more to complete. It’s also terribly aggravating.
You can keep your assets private. If your assets go through probate, they become public record. If that’s not a very appealing prospect, you can set up a trust. No one will be able to see what’s in the trust unless you want them to see it.
You can keep your decisions from being contested. Unfortunately, when someone dies, it is not uncommon for loved ones to feel like their assets are not being distributed in the way that they actually would have wanted. This can lead to them contesting a will – or trying to fight against – the process in an attempt to change it. While it is possible to contest a trust, it is much harder than contesting a will, especially if the trust is created during life. So if you are worried about someone causing trouble for your beneficiaries, a trust can be a big help.
So, What Exactly Happens to Revocable Living Trusts after Death?
1. The trust automatically becomes an irrevocable trust, preventing anyone from making any changes to the trust to protect the creator’s wishes.
2. The trustee will be notified, so he or she can begin the process of managing the trust.
3. The trustee will then engage in a number of “administrative” tasks, such as transferring the property, acquiring death certificates, notifying the Social Security Administration, taking inventory of assets, contacting beneficiaries, and paying any necessary debts.
4. If the trust is set up more like a traditional will, with the expressed goal of distributing all of the assets outright to the designated beneficiaries quickly, this process will most likely be completed within 3-6 months depending on the complexity of assets in the trust. If, however, the trust was designed to be ongoing (for example, if the assets are to be held for minor children until they reach the age of adulthood), there will need to be continuous management until the terms of the trust are met and the assets can be completely distributed.
As you can see, there’s a lot to cover with trusts – and this doesn’t even scratch the surface! The best thing to do if you are interested in learning more about trusts and whether one or more might be right for you is to get in touch with us.