Common Mistakes with Living Trusts

At The Galligan Law Firm, we are fans of using trusts in estate plans.  Trusts are versatile, you can accomplish incapacity planning, probate avoidance, tax planning, asset protection and more with trusts.  However, it’s true, as with all planning, that things don’t always go as intended.  Sometimes people make mistakes with living trusts, and although the trust is still a good plan, it doesn’t create all of the benefits intended.  Yahoo Life’s recent article entitled “Why You Should Put Your House in a Living Trust” explains some of the biggest errors people make with trusts.  However, take that article with a grain of salt, there are a few things I disagree with that I’ll mention later.

First, remember that a trust is a fiduciary relationship in which one party (trustor) gives another party (trustee) the right to hold title to property or assets for the benefit of a third party (beneficiary).  In living trusts, this is frequently the same person, at least during their lifetimes, and then there are new individuals to take over as trustee and beneficiary once something happens to the trustor.

Trusts are created for the reasons I mentioned earlier.  Most people ask about them because they want to avoid the probate process.

Also remember that although trusts are generally associated with the wealthy, almost everyone can use them as many people benefit from them.  I personally think they are associated with the wealthy because high profile deaths often reference trusts.  So, if a very wealthy person passes, say Steve Jobs for example, there will be stories talking about his wealth and how it passed by use of trusts.  His lawyers used those trusts for the benefits I mentioned above, but people only hear about it in high profile cases, so they assume that’s what they are for, not realizing everyone can use them.

All that said, if you are using a living trust, here are a few common trust mistakes to consider:

Failing to retitle your real property.  If you own a home, other land, mineral interests, etc, then transferring it to the trust or arranging for it to transfer to your trust at your death with a lady bird deed or transfer on death deed is very important.  If you don’t, probate may be necessary to gain control of the property and transfer it to your trust.

As a note, the Yahoo Life article is incorrect here and when they mention telling your mortgage company of a transfer.  Transferring your owner-occupied primary residence to your revocable living trust does not trigger a “due on sale” clause in the mortgage.  The Garn-St. Germain Act of 1982, which is a federal law governing mortgages, prohibits that.

Failing to trust fund.  Most clients like the idea of avoiding probate.  However, it is important to recognize that the trust itself cannot collect assets for you.  If you have a bank account with your name on it and nothing else addressing title during life or at your passing, the trust isn’t the owner.  The trust WON’T become the automatic owner at your death.  Instead, the probate of will becomes necessary.  This too is an easy thing to address as part of proper estate planning, but sometimes I hear clients say “it’s just a little bit, no big deal.”  I assure you your beneficiaries will not agree.

Failing to tell the insurance company of ownership change. Be sure to tell your home insurance company about retitling to a trust. If not, the insurance company may deny your claim in an event because the actual property owner—your trust—wasn’t insured.  This is seldom is serious problem, but is easy to overlook.

Don’t make these trust mistakes. Work with an experienced estate planning attorney to ensure you are getting the most value you can out of your trust.

Reference: Yahoo Life (Jan. 10, 2022) “Why You Should Put Your House in a Living Trust”

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Should I Use a Corporate Trustee?

Recently, a client decided to include a corporate trustee as part of their estate plan.  When discussing the matter, they were surprised at how affordable they can be, and that they were glad they choose that route.  Thinking of that conversation and how important it is to name a proper trustee, I wanted to highlight some benefits of corporate trustees.

The Quad Cities Times’ recent article entitled “Benefits of a corporate trustee” warns that care should be taken when selecting someone to serve in this role. Now, many clients have loved ones in their lives who are capable of serving as a trustee or other fiduciary, but for some, family members may not have the experience, ability and time required to perform the duties of a trustee. Those with personal relationships with beneficiaries may cause conflicts within the family. You can name almost any adult, including family members or friends, but think about a corporate or professional trustee as the possible answer.  I also covered how to choose a trustee here:  https://galligan-law.com/how-to-pick-a-trustee/

Here are some reasons to use a corporate trustee:

Experience and Dedication. Corporate trustees can devote their full attention to the trust assets and possess experience, resources, access to tax, legal, and investment knowledge that may be hard for the average person to duplicate. It’s their job and they hire professionals with backgrounds in these areas.  Many people who choose a corporate trustee do so for this reason.

Relative Cost.  This may seem a strange reason to consider a corporate trustee.  Most people don’t consider them at all because professionals will charge fees to serve.  However, trustee fees are often regulated by law or by the trust document.  Both individuals such as family members, and corporate trustees might only be able to charge the same rate.  Given the fact the trust might pay your middle child and an office of professionals the same rate, that isn’t a bad deal.  Further, corporate trustees sometimes take assets under management.  This means they would invest your assets for you, and therefore make money on the investments like a financial advisor does.  If they do, they often include those fees at a reduced rate when serving as a trustee.  This means you actually save money in the end.  It is also possible that they don’t take money under management so that your investment advisor can continue to invest the funds if that’s your preference.

Successor Trustee. If you choose to name personal trustees, you may provide in your trust documents for a corporate trustee as a successor, in case none of the personal trustees is available, capable, or willing to serve. Corporate trustees are institutions that don’t become incapacitated or die. You should consider the type of assets you own and then choose the most qualified trustee to manage them.

Middleman.  Clients sometimes struggle to admit to their estate planning attorney that their families don’t get along.  They don’t want to talk about how a child of theirs struggles with addiction, is dependent on them for support or otherwise would be difficult for a family member trustee to deal with.  In that situation, corporate trustees have the benefit of professional detachment.  The beneficiary can be as angry with them as they want, and the anger won’t be directed to one of your loved ones.  This can make professional trustees an attractive middleman or wall between a difficult beneficiary and the rest of the family.

In sum, many estate owners can benefit from the advantages of a corporate trustee.

Ask an experienced estate planning attorney when working on a trust about naming the appropriate corporate trustee, and the advisability of including terms for your registered investment advisor to manage assets for your trust.

Reference: Quad Cities Times (Nov. 28, 2021) “Benefits of a corporate trustee”

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Do TOD Accounts Mean I Don’t Need an Estate Plan?

Many people incorporate a TOD, or “Transfer on Death” into their financial plan, thinking it will be easier for their loved ones because it will avoid probate.  They often do this at the suggestion of bankers or financial professionals, and they believe it avoids the need for having a trust or even a will.  However, the article “TOD Accounts Versus Revocable Trusts—Which Is Better?” from Kiplinger explains how it really works.

The TOD account allows the account owner to name a beneficiary on an account who receives funds when the account owner dies. The TOD is often used for stocks, brokerage accounts, bonds and other non-retirement accounts, and is akin to having a beneficiary named on the account.  It’s worth pointing out that I’m using TOD as a general term here, the specific term might be different for different types of assets.  For example, a POD, or “Payable on Death,” account is usually used for bank assets—cash.  You can find more information about pitfalls of beneficiary designations here.  https://galligan-law.com/common-mistakes-made-on-beneficiary-designations/ 

The chief goal of a TOD or POD is to avoid probate. The beneficiaries receive assets directly, bypassing probate, keeping the assets out of the estate and transferring them faster than through probate. The beneficiary contacts the financial institution with an original death certificate and proof of identity.  The assets are then distributed to the beneficiary. Banks and financial institutions can be a bit exacting about determining identity, but most people have the needed documents.

There are pitfalls. For one thing, the executor of the estate may be empowered by law to seek contributions from POD and TOD beneficiaries to pay for the expenses of administering an estate, estate and final income taxes and any debts or liabilities of the estate. If the beneficiaries do not contribute voluntarily, the executor (or estate administrator) may file a lawsuit against them, holding them personally responsible, to get their contributions.

If the beneficiary has already spent the money, or they are involved in a lawsuit or divorce, turning over the TOD/POD assets may get complicated. Other personal assets may be attached to make up for a shortfall.

Very frequently, naming a TOD/POD beneficiary in an estate that otherwise expects to go through probate (i.e. a will-based estate plan) leads to having non-liquid assets such as a house which cost money to administer, and no money with which to do so.

If the beneficiary is receiving means-tested government benefits, as in the case of an individual with special needs, the TOD/POD assets may put their eligibility for those benefits at risk.  This is a very, very common problem when a loved one has a disability.

Very simply too, beneficiaries under TOD/POD accounts can predecease an owner with no meaningful way to handle contingencies.  If that happens, the asset will be subject to probate which will negate their advantage, and may not go to the proper beneficiaries.  Utilizing trusts can solve that problem.

These and other complications make using a POD/TOD arrangement riskier than expected.

A trust provides more benefit to the trustor (creator of the trust) and in fact can work in conjunction with TODs as part of a complete, integrated plan.  Trusts address control of assets upon incapacity because trustees will be in place to manage assets for the trustor’s benefit. With a TOD/POD, a Power of Attorney would be needed to allow the other person to control of the assets. The same banks reluctant to hand over a POD/TOD are even more strict about Powers of Attorney, even denying POAs, if they feel the forms are out-of-date or don’t have the state’s required language.  People often don’t think of trusts as part of incapacity planning, but this is often a benefit to a trust-based plan.

Similarly, trusts (whether an asset named the trust as beneficiary of a TOD/POD or if it owns the assets themselves) can address contingencies.  So, if a beneficiary has a disability, potential divorce, creditors, predeceases the owner, or virtually any other reason for them not to directly receive money, the trust can provide for what happens under all of those contingencies.

Creating a trust with an experienced estate planning attorney allows you to plan for yourself and your beneficiaries, and if you chose to avoid probate, to do so in a way that will work for all of your assets and to avoid problems created by solely using TOD/POD accounts.

Reference: Kiplinger (Dec. 2, 2021) “TOD Accounts Versus Revocable Trusts—Which Is Better?”

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