The Revocable Living Trust

The modern revocable living trust dates from the early 1970s although revocable grantor trusts have been around for many years. Basically, this trust is a mechanism which holds title to a person's assets. Any trust needs 5 elements:

  1. A Trustor who places assets into a trust
  2. A Trustee who manages those assets
  3. A Trust Beneficiary who benefits from the trust
  4. Assets which go into the trust
  5. A trust agreement naming the Trust officers and their powers

In a revocable living trust the creator of the trust is the Trustor, the Trustee, and the Trust Beneficiary at the same time. In the event of their incapacitation or death, they have named a Successor Trustee to manage the estate during the Trustor's incapacitation or distribute the assets in the event of the Trustor's demise.

All trusts, of any type, must be compliant to existing state trust laws and state and federal tax laws in effect when the trust is prepared. Trusts done 75 years ago may still be valid for their existing beneficiaries, but this does not mean that similar trusts like those can be prepared for clients today. Both trust and tax laws change. Any newer trusts must reflect the current legal structure.
Secondly, a trust can be prepared for any legal purpose. To have a trust to frustrate legitimate creditors or to evade legitimate taxes is not a legal purpose. Such trusts are self defeating and are ignored by courts of law and legal authorities.

A revocable living trust accomplishes 3 goals for a person:

  1. It identifies and organizes their assets
  2. It has a Springing or Durable Power of Attorney naming a conservator for the estate if the Trustor (the one creating the trust) is incapacitated
  3. It allows a simple, timely, and private distribution of assets to the designated heirs of the estate following the death of the Trustor

All living trusts for their type (ie. single, marital, A/B, Q-TIP, and Q-DOT) are virtually identical. They are standardized documents. Whether the trust is prepared by the finest Boston or New York law firm or by a local (and hopefully knowledgeable) para-legal, it will be fundamentally the same document. The cost for a living trust should not exceed $750. Many living trust sales people charge $1,500 or more. Keep in mind that the trusts are fundamentally the same and that in this price one is also paying a hefty sales commission. A client is generally better off when dealing directly with the person who will prepare their trust. They are far more knowledgeable than living trust sales people and will know which questions to ask for the proper preparation of your trust.

Many people have a "conceptual" problem in understanding living trusts. Think of it as a private "cookie jar." In this you have listed what you own, who you want to manage your assets and affairs, and how you want them distributed after you die. It is both a "diary" and a "ledger sheet" all in one. It is important that in your living trust that you list what you own in the Schedule of Trust Assets (the "ledger"). As your estate changes, make notes of this in the Minutes of the Trust (the "diary"). Real estate needs to be re-deeded to note that your trust is the owner of record of real property.

Some assets should not be in a living trust. These include any qualified investment plans such as IRAs, 401(k), and TSA plans. To change these to the ownership by your trust can cause an immediate and negative tax incident. These assets are generally exempt from probate.


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