Revocable Trusts have become a popular mechanism for people manage assets during lifetime and distribute them after death. One benefit to using a Trust in this fashion is the minimizing and often avoidance of the cumbersome and expensive public probate process. The most common Trust for these purposes is an intervivos or “living trust” in which the client acts as the Trustee and manages the trust assets during his or her lifetime.
In establishing a trust, you can set forth your estate planning wishes and can even provide for more specific goals like staggered distributions to younger beneficiaries. Even if you chose not to fund the Trust during your lifetime, a simple Will used in conjunction with a Trust can provide that your assets pass into the trust at death and be distributed according to the terms of the Trust. Like a Will, Revocable Trusts are flexible and allow you to update it as necessary to reflect your current estate planning goals.
Unlike a Will, Revocable Trusts become effective once executed, and therefore provide the creator or “Grantor” of the Trust a mechanism to care for him or herself during incapacity by appointing a successor Trustee to manage the Trust assets for the Grantor's benefit while living but disabled or incapacitated.
Irrevocable trusts are most often used to remove assets from the client's estate for federal tax purposes. Irrevocable Trusts are less flexible than a Revocable Trust and typically cannot be changed once established. Irrevocable Trusts are typically established with a specific goal in mind, such as providing for charitable purpose or establishing a life insurance trust to minimize death taxes. Irrevocable Trusts may provide a useful tool for clients whose estates are potentially subject to estate taxes.
Testamentary Trusts are trusts that are created within a Will and unlike most Trusts, are subject to the jurisdiction and oversight of the Probate Court. While a Testamentary Trust can be used to prevent outright distributions to certain beneficiaries, the cost of requirements of the Probate Court can make this option burdensome. Still, you may find the Court's oversight of the Trustee's actions attractive.
Special Needs Trusts can either be created with the beneficiary's own assets or established using a third-party assets. Planning for special needs involves estate and long-term care planning for clients who are either born disabled or become disabled during his or her lifetime. Planning is necessary to preserve a disabled person's assets for his or her care and ensure that an inheritance does not interfere with eligibility for Medicaid or other public assistance. Special Needs Trusts can be beneficial for anyone who will require substantial medical treatment in the future. A Special Needs Trust can be uses to maintain Medicaid eligibility and assist in preserving assets for the lifetime benefit of a disabled individual under age 65 who transfers assets to a trust established by a parent, grandparent, legal guardian or court for the benefit of the disabled individual, so long as the state will receive the trust assets upon death of the beneficiary up to an amount equal to the benefits received. Special Needs Trusts established by a third-party for the benefit of a disabled person do not reimburse the state for Medicaid benefits, but must restrict the beneficiary's access to the funds.