Revocable Living Trust – What is a living trust?
A revocable living trust is a legal document that helps you tell the world certain things upon your death. First, it tells who you want to take care of your children. Second, it tells people who gets your assets. Third, it helps you tell people who is to take care of you in case of a disability. Finally, it can help with any tax consequences regarding your assets.
Of course, the BEST thing about a trust is that you avoid probate – more on that in a minute.
A Revocable Trust is also called a Living Trust or even a Loving Trust. The Trust has three separate parties to it:
- The Settlor– Also called grantor or trustor, this is the individual that the Trust is about. It’s this person that puts their assets into the trust. This doesn’t just have to be a single person, many times a trust is created on behalf of multiple people (think husband and wife).
- The Trustee– This is the person who holds title to the property. They have a duty to manage the property (called a fiduciary duty) of the trust. In a normal Revocable Trust situation, the Grantor (or Settlor/Trustor) is also the trustee during his/her life. Upon their death, the trustee is the person that the Grantor names in the Trust.
- The Recipient– The beneficiary is the person that gets the assets from the Trust. This can be the Grantor’s children, spouse or even a charity. You can even name someone else entirely. Trusts are very flexible documents.
A couple of key points: a Trust is considered revocable only during the lifetime of the Grantor. When they die, neither their spouse, beneficiaries nor trustee can amend the trust (exception: the court can always amend the trust). Second, it’s only a “Living Trust” during the Grantor’s lifetime.
Revocable Trust – How do you Create One?
Well, hire a lawyer. What a lawyer does is that they draft the trust agreement, which is signed by the Grantor/Settlor/Trustor and the Trustee. Also, the spouse must consent to any transfers of property that would be affected pursuant to their spousal election pursuant to state law.
But a Trust is ineffective if it is simply a legal agreement. The Trust must have property put into it (called “funding”). This is where you title your home and bank accounts into the Trust, such as The Mike and Mary Jones Revocable Trust dated January 1, 2014.
Living Trusts – Can I change it?
Of course. This is one of the big advantages of a Trust. In a typical situation, there is language included that allows you to amend the trust at your discretion. Thus, any life scenario – like a marriage, death, adoption – allow you to amend the Trust.
Revocable Trust – What about a Will?
A Revocable Trust is the main document in any estate plan, but a will is also necessary. What a will would do in this situation (called a pour-over will) is put any assets that were not a part of the trust into the trust at death. Thus, the will would simply name the Trust as the beneficiary. This is a great fail safe just in case an asset is missed. But the Trust would still determine where those assets would pass.
This actually comes into play more often than you would think. The cases that we normally see this is where the Grantor has an automobile accident or some sort of physical problem during their lifetime. Then it’s discovered that they purchased a piece of property that didn’t make it into the trust. If there wasn’t a will, then these assets would have to be probated, which would defeat much of the benefits of having a trust. Or worse still, the beneficiaries would argue over who was to receive the new assets.
Further, in a will you can nominate a guardian for your children.
Revocable Trust – Does it help you avoid Probate and the costs of Probate?
Absolutely. Probate is the process of passing property to the heirs named in a will or according to the laws of intestate succession pursuant to the laws of the state. However, any property that is within a Revocable Trust is not subject to the probate process. This significantly reduces, or even eliminates, the time and money spent in the probate process. Further, by having a Revocable Trust, there is rarely a bond needed for probate. Many times, it simply involves filing the will.
Revocable Trusts – What are Some of the Benefits?
Obviously, one of the biggest benefits is the avoidance of probate. In many cases (most cases?), that’s enough.
In addition to the cost savings, there are also privacy benefits to having a Trust. The assets within the Trust do not have to be disclosed to the public upon death. This is completely different than a will, in which case all of the assets are publicly disclosed.
There is also a benefit in speed. The property that consists of making up the trust can be quickly distributed to the proper recipient after the Grantor’s death, which is a significant benefit as compared to the time delays caused by the probate process.
Further, along with the avoidance of probate in Kansas, “supplementary” probate management in various other states where property is owned could be avoided by transferring the out-of-state property to a revocable living trust. If you own real property (like a vacation home, or oil and gas well interests), this can be a significant advantage.
Finally, you can provide the Trustee with how you want the property to be run. In case of a family business, you don’t have to sell right away. Instead, the Trustee can work with the beneficiaries to maximize value before transferring the business to your heirs/beneficiaries.
Revocable Living Trusts – What are some of the Disadvantages?
Cost. A Revocable Trust is a much more complicated agreement than a Will (although it doesn’t have to be). Because it is more complicated, it costs more to set up and administer during the Grantor’s lifetime. Not only is the document more expensive, but assets must be re-titled into the trust name. This takes time and money.
Diligence. Having a Trust is an ongoing commitment. You need to monitor the trust to make sure that assets are properly titled and any new assets titled in that name instead of your personal name. Bank accounts are usually the biggest problems and banks seem to have a hard time grasping the concept of a Trust and always want to title the accounts in your personal name.
Tax Rules. What? I thought that Trusts were made for taxes. Well, they are. But you do lose a bit of flexibility as the tax year for a trust is the calendar year while a probate estate has the option of using a fiscal year.
Trustee – Who can be the Trustee?
During your lifetime, you can. You can also name your spouse, your best friend, your children or a financial institution. Upon death, the Trustee is the person that you choose. Further, as long as they remain physically and emotionally competent, they can serve for a long time. You also get the option to name a successor trustee in case they cannot or will not serve. Kansas law does not require someone to be a homeowner to be a trustee, but does have certain rules on financial institutions (although most banks have trust departments that qualify).
Also, you can name a Trustee while you are still alive. This is very helpful if you were to become physically or mentally incapacitated (think heart attack). You don’t have to go to court to do this.
You can even name more than a single trustee. Many times, we see a surviving spouse name their children as co-trustees upon their death. We do pay special attention to make sure that their duties are spelled out (who can pay debts individually versus all together).
What about a Power of Attorney or Living Will?
We draft, as a part of our standard Trust documents a Durable Power of Attorney for Financial Decisions and a Durable Power of Attorney for Health Care Decisions. These documents are useful during your lifetime and, in conjunction with a Revocable Trust, a great tool in your estate plan.
A Living Will (or Advance Directive) is also drafted as part of our standard package. However, we point out the pros and cons of this document. In general, we recommend that it be used for those with failing health, but not for younger people. In general, this is something to discuss with your attorney.
What about Taxes?
Ok, so this is tricky. Let’s go through some of the basics. During your lifetime, the tax burden does not change. Actually, the Revocable Trust is totally ignored so your tax returns will look exactly the same. We no longer have to file returns with the Revocable Trust, including their EIN, on them.
But once the Trust becomes irrevocable, then it must file a tax return. Properly planned, there is little to no income taxes that should be paid as part of a Trust becoming irrevocable.
As for estate taxes, a Trust is a great way to do some tax planning to maximize the amount of savings. Further, as part of a well executed estate plan, the Trust can provide your heirs with your assets at a better tax rate than you had. This is called the “step up in basis” rule. What this means is that your heirs get your assets at their then current value and not at the cost of purchasing those assets. For example, let’s assume you bought a vacation home for $100,000. At your death, it’s worth $500,000. If you would have sold the home prior to death you would have paid taxes on $400,000. But your heirs could sell it for $500,000 and pay NO taxes.
We are a group of lawyers dedicated to providing you with the best estate plan. We serve in the greater Shawnee Mission area (Mission, KS and Shawnee, KS, etc.). We are Johnson County, KS estate planning attorneys.
Shawnee and Mission are cities located in Johnson County, KS. Our estate planning lawyers in Johnson County, KS serve all cities in the area.
Please call us for a personalized plan for your estate today.
The Eastman Law Firm
URL of Map