A living trust is merely one set up while you are still alive. In its simplest form, it acts as a will substitute to avoid probate, and removes the need for a durable power of attorney with respect to property placed in the trust.
Most are revocable, meaning you can change your mind and yank the assets if ever you decide to.
Typical living trust provisions
You are the grantor, trustee, and primary beneficiary, getting to spend or invest income and principal as you see fit.
But in most cases, you are not the only beneficiary: you decide in advance what happens to the corpus – the assets in the trust – if something happens to you.
You can have the trust terminate at your death, with the money going freely to spouse, children, or cats. Or the trust can continue, with income (even principal if she needs it) going to spouse for life, with the balance either held in trust for the kids, or just paid out to them at some certain age.
Contingent trustees compared to powers of attorney to avoid guardianship
You name a successor trustee (and even a second successor, if only a bank to make sure at least someone’s still around) to run the trust if you die or become incompetent according to the test you write down in the trust.
If it turns out that you need someone to run your affairs, this avoids both court and the dilemma of giving someone the awesome power of a durable power of attorney (which in most if not all States can be used by your “attorney-in-fact”, the holder of the power, even before you lose your faculties.
Springing powers of attorney
Some states permit a springing power of attorney, which springs into existence if and only if you become incompetent – lots less risk from dastardly children stealing assets with these). They do add the complexity – and risk – of having to prove your incompetence to the written standard before they are effective.
How trusts avoid probate
If you die, there is no need to probate the trust property since title is already held in the name of the successor trustee. Works like a charm, where your primary objective is probate avoidance, and the planning for your own legal incapacity (has a nice ring, what?).
And of course, like all trusts, it can do far more, depending on your goals and just how many provisions you want to build into the thing.
Who should your trustees be?
A typical pattern might be for you to name yourself as trustee and beneficiary, with your spouse as successor trustee in the event of your incapacity or death.
Or you can be co-trustees. You might name a bank or child as a contingent successor trustee to take over when the same happens to your spouse.
Your spouse would be the income beneficiary at your death, with the right to withdraw principal if she really needs it. If she is the successor trustee, she would make this determination for herself; pick someone else to succeed you as trustee if she is not good with money.
Your children would be the remainder beneficiaries, getting the corpus at mother’s death, either outright or in trust, whatever you want. Set up this way, you get probate avoidance, a built-in trusted manager to take over when needed, and a vehicle to prevent the kids from being disinherited if your surviving spouse remarries.
While most of this can be done with testamentary trusts – again those set up by your will after you die – you do not avoid probate this way, and would need to rely on a power of attorney, or face guardianship proceedings, with respect to management while you live if you become incapacitated.
So, you see, trusts offer almost infinite flexibility to plan your affairs. By the way, “she” is the successor in these examples because women tend to live longer, not from any bias.
Major trust blunder – don’t forget to retitle assets to the trust’s name!
To make living trusts work properly you MUST title the appropriate assets to the trust’s name!
For you, Mr. Bigbucks, for each account, each deed, each corporate share or LLC membership interest, the title must read “J. Bigbucks, trustee for the J. Bigbucks Living Trust.”
Only property and accounts owned in the trust’s name will be handled according to its provisions.
Assets not appropriate to be in trusts
For stuff not appropriate to be titled to the trust – typically IRAs and 401ks (because you would have to make taxable distributions to get funds out and into a trust) sometimes life insurance and homestead real estate – use beneficiary designations or pay on death features or ladybird deeds/transfer on death deeds to get it into the applicable trust at death. Also, make sure to keep the trust up with changes in the law.
Trusts and IRA RMDs
The SECURE Act of late 2019, for instance, produced a sea change in how required minimum distributions (RMDs) are treated for non-spousal beneficiaries. Kids can no longer stretch for their lifetimes, being limited to ten years. But they get to pick the years. If you did not change the old “IRA conduit” provision for tax control (assuming you ever had it!)
The balance will pass by beneficiary designation, title, or be thrown into your probate estate, according to its nature. So use a pourover will, because you are bound to forget something.
Living trusts much better than wills or testamentary trusts
Often a will is found as the primary estate planning document, and even if the will has a trust “in” it, the advantage of avoiding the hassle (and significant expense!) of probate, as well as greatly reducing guardianship, criminal and credit risk, is lost. Setting up a living trust and putting your assets in its name while you’re alive is a big opportunity often missed even by those with expensive and “sophisticated” estate plans.