Trusts to avoid probate

               Trusts to avoid probate

 

        Compiled by Kenneth Vercammen

 

Irrevocable Trust:

        A Trust, which cannot be changed or canceled once, it is set up without the consent of the beneficiary. Contributions cannot be taken out of the trust by the grantor. Irrevocable trusts offer tax advantages that revocable trusts don't, for example by enabling a person to give money and assets away even before he/she dies. Opposite of revocable trust.

 

        Probate is defined as the procedure by which an Executor proceeds to admit a Will to the jurisdiction of the Surrogate Court, which is proved to be valid or invalid. The term generally includes all matters relating to the administration of estates.  There are instances where Surrogate Court monitoring of the estate is desirable.  Much has been written about the disadvantages of probate.  Following are just a few of the problems associated with probate and why certain people set up Trusts in addition to Wills.

 

Lack Of Privacy with Wills

        Documents filed with the Surrogate Court are public information.  They are available for inspection to anyone who asks. In large estates, which may require an accounting, your probate file will contain a complete list of all assets devised by your Will including business assets.  This lack of privacy may lead to problems among family members who now know the plan of distribution and may then contest any provisions with which they disagree.  Disinherited relatives and creditors are notified and given time by the Court to contest the Will distribution.  

 

Time Consuming

        The probate of an estate may take several months to several years to complete.  During that time family members may have to apply to the Surrogate Court for an allowance.

 

Fragmentation - Real Estate

        If you own real property in more than one state, probate rules must be followed in each state in which real property is located. The cost and time may be increased.

 

        Revocable Living Trust & Irrevocable Trusts

        

        A Revocable Living Trust is a legal device that allows you to maintain complete control over your assets and avoids Probate.  However, a Revocable Trust does not reduce Estate Tax and does not protect your assets from nursing home fees.

        Because there is no probate of a Revocable Living Trust, your private financial matters remain private, there are no probate costs, no long delays and loss of control, and no fragmentation of the estate. However, since you still control the trust, it cannot shield assets from Nursing Home, Medicaid or Estate Taxes. To do that, you will need to hire an attorney to prepare an Irrevocable Trust. Fees are minimum $3,000- $5,000 for trusts.

 

        A Revocable Living Trust can be structured to automatically create separate Trusts upon the death of your spouse.  Here's how it works.  If the wife dies first, the husband has total control of his Trust. Also, for the remainder of his life, he receives all income from her Trust and has the use of the assets whenever needed for living expenses.  When he dies, each Trust will claim its tax exemption, and some will go tax-free to their children, or any other beneficiary they designate, without having to go through probate. 

https://www.njlaws.com/trusts-and-wills.html

 

https://www.njlaws.com/free_special_report_will.html

 

You Maintain Complete Control Over Your Property In a Revocable Living Trust 

        The principle behind a Revocable Living Trust is simple.  When you establish a Living Trust, you transfer all your property into the Trust, and then name yourself as trustee, or you can name you and your spouse as co-trustees of the Trust.  The trustees maintain complete control over the property, the same control you had before your property was placed in trust You can buy, sell, borrow, pledge, or collateralize the trust property.  You can even discontinue the Trust if you choose.  That is why it is called a "Revocable" Living Trust. We will explain the "Irrevocable Trust" at the end of the article.

 

Transferring Property Into the Trust

        The transfer of title to property into the Trust is a relatively simple matter when you hire an attorney. Anywhere you have assets, you will get help in transferring your property into the Trust.  Your attorney, securities investor, etc., will provide you with assistance needed to transfer your property into your Revocable Living Trust.  Your attorney will provide the information and assistance you need to properly fund your Trust.

 

Complete Privacy  

        Probate records are public; your Trust documents are private.  A Trust will safeguard the privacy of your family and your private financial matters.

 

Naming A Trustee

        Most people name themselves and their spouse as the initial Trustees of a Revocable Trust. This is usually true unless one spouse is incapacitated to the point that he or she is not able to manage your assets in the same way you do now. However, for an Irrevocable or Medicaid trust, the spouse cannot be the trustee.

 

Gifts To Religious And Charitable Organizations

        Many people wish to give a portion or sometimes all of their assets to a religious or charitable organization in order to carry on the work of those organizations that have given them comfort or peace of mind during their lifetimes.  This is easily accomplished with a Revocable Living Trust.

 

        Current Federal tax laws allow you to leave an unlimited amount to a spouse, tax-free. When your spouse dies, the estate is entitled to a $5,400,000 tax exemption.  

 

WHAT IS CREDIT SHELTER TRUST IN A WILL?   The Credit Shelter Trust (sometimes referred to as a “Bypass Trust” or an “A/B Trust”) is a popular estate planning technique used by married couples with combined assets to avoid the NJ Estate Tax.           The purpose of the Credit Shelter Trust was to avoid the wasting of federal and state exemptions on the death of the first spouse. Instead of leaving all assets to the surviving spouse and thereby exposing the surviving spouse’s estate to more tax, Nursing Home & Medicaid issues, plus elective share by a future spouse, both spouse’s Wills are drafted to establish a Credit Shelter Trust to come into existence and be funded on the first spouse’s death.             In a typical Credit Shelter Trust, the surviving spouse is entitled to receive all of the income from the Trust for his or her lifetime and has the right to demand principal distributions for his or her health, education, support and maintenance in his or her accustomed manner of living. Distributions in excess of that standard require the cooperation of a Co-Trustee – often an adult child of the surviving spouse or a trust department of a bank.          Since NJ is eliminating the NJ Tax, a Testamentary Trust within the Will is still a useful device to help ensure children and grandchildren with receive money down the road. Otherwise, the surviving spouse can spend all the money in Atlantic City. The surviving spouse could also get remarried and do a new Will leaving all assets to the new spouse. Many families want to protect at least some of the money from wasteful spending or a new spouse.       If the Intervivos Trust technique is implemented as part of a Client’s Estate Plan, you can hire the attorneys for a separate fee to assist the Client in re-titling his or her assets so that assets are available to fund the Credit Shelter Trust. Re-titling is necessary because most Clients tend to hold assets jointly with right of survivorship and assets must be titled individually in a person’s name in order to be eligible to fund a Credit Shelter Trust. We work with a tax attorney to help our clients.

 

        Irrevocable Trust Accounts: Irrevocable trust accounts are deposits held by a trust established by statute or a written trust agreement in which the grantor (the creator of the trust - also referred to as a trustor or settlor) contributes deposits or other property and gives up all power to cancel or change the trust.

        An irrevocable trust also may come into existence upon the death of an owner of a revocable trust. The reason is that the owner no longer can revoke or change the terms of the trust. If a trust has multiple owners and one owner passes away, the trust agreement may call for the trust to split into an irrevocable trust and a revocable trust owned by the survivor. Because these two trusts are held under different ownership types, the insurance coverage may be very different, even if the beneficiaries have not changed.

 

WHAT IS MEDICAID..?

        Medicaid is a Federal medical bills assistance program that pays medical bills for eligible, needy persons. It is administered by each state. All payments are made directly to the providers of medical and other health care services. The Medicaid-eligible person does not pay the health care provider for services. The only exception is a patient in a Medicaid-approved nursing facility who may be required to contribute part of his/her income toward the cost of care.

 

        It is important to note Medicaid typically has a lien on assets you own.

 

        Someone can avoid Medicaid and nursing home liens by setting up an Irrevocable Trust and waiting 60 months to apply for Medicaid.