Trusts Law
Do you have a will already? If not then get one so your family can avoid litigation!
Many people think that estate planning is only for the elderly or the wealthy, but have you thought about what would happen if you unexpectedly died? Do you really want to leave you wife and kids to figure out how to manage your affairs while they are grieving? If you have a will, then your family has options on how to proceed and it makes the legal process less trying on them. It is even a bigger issue when you are in a blended family. Imagine your minor children living with your ex-spouse becoming a one-half owner of your house with your current spouse. This in it self creates drama for all those involved when it could be avoided with a simple document expressing your desires.
Many people believe that having a will makes their family go through the costly process of probate, however, in Texas the process is not costly and its a lot easier than letting Texas laws decide who gets your stuff.
How does the probate process work? After you pass away, your executor, who you named in your will, will collect and distribute the assets to your beneficiaries during a process known as probate. This will include settling any debts you have with creditors. The process is inexpensive, simple and non intrusive into your loved ones lives.
What happens if you don’t have a will?
- If you are married and all your kids are from your spouse? Your spouse gets your community property and your spouse splits your separate property with your kids.
- If you are remarried and have kids from another marriage? Your new wife and your kids share all your property. In this scenario it is common for your wife and kids to become joint owners of your home.
- If you are single with kids? Your stuff goes equally to your kids and if one is not living then their share goes to their children (your grandchildren from that kid).
- If you are single without kids? Your stuff is divided between your parents, if one of them is deceased then that parent’s share goes to your siblings.
So you can see how the laws in Texas might not be how you want your things to be distributed and having a will leaves the decision solely up to you! We can always find a distant relative to be your heir, but do you really want someone else deciding? So get a will today! My office can help, just call 817-336-2400 and ask for Patricia Cole.
When should you amend your trust?
Many times people create trust during their lifetime and they face situations that may require amendments to the trust. If changes are required to your trust, a trust amendment is the proper way to make the changes. Handwritten marks and notes on the trust document are not considered legal changes. An amendment specifically states what paragraphs of your trust is being changed, and sets forth the new trust language. The amendment may be short, or it may be so drastic that it actually changes the entire trust, from the first word to the last.
What are some reasons why you may need to amend your trust? Some trusts are completely out-of-date, or irrelevant due to changes in the statutes, case law, or just poorly written. Some trusts may have provisions that are illegal, or contrary to the client’s wishes. Some people need their trusts revised or updated because of changes in their wealth or family circumstances.
Lengthy or complicated trust amendments may be difficult, costly, time consuming and hard to follow for future trustees. Therefore, a good estate planning attorneys will recommend a trust restatement. A trust restatement is a document which completely restates the entire trust agreement, and a new trust is created through the amendment and restatement.
Although a restatement is basically a new trust in the form of a trust amendment, the name of the old trust and the date that it was established remain the same. Therefore, there is no need to obtain a new tax identification number, move funds to new accounts, change deeds, etc.
With the many tax law changes in recent years, concerns about future ill health and incapacity, or with changes in your family situation, it is recommended to have your trust reviewed by an attorney. A simple amendment may be all that is required or it may be necessary and more efficient for the attorney to restate the entire trust.
Do you need a trust to preserve your assets?
One of the main ways to protect your assets during your life, after death, and even after the death of your children is by using a trust vehicle. Individuals need the help of professionals to design a comprehensive plan for their trust needs if they want to ensure the trust works as planned. Your attorney can help you prepare the trust document, additional estate planning documents, and deeds transferring your real property or mineral interests into the trust. Your financial advisors can help you transfer your investment funds and accounts into the trust. Your banker or a corporate trustee can help you manage the trust during your life, upon disability or after your death.
The benefits of incorporating trusts into estate plans may include the ability to provide for ongoing professional management of assets in the event of your disability, and to help your family avoid the expense and delay of probating your estate, can pass more of your estate to the beneficiaries by minimizing your estate tax liabilities, and can benefit charitable organizations during and after the individual’s life.
There are various types of trusts that can be used and while this list is not exclusive it describes does provide some of the basic types of trusts as well as some of the more sophisticated types of trusts used in estate plans. A Testamentary Trust is one created after your death through language contained in your will and can be used to limit the estate taxes upon your spouse’s death and to control or govern the assets for your children or grandchildren until they reach a certain age. A Credit Shelter Trusts is a type of trust that allows the assets specified in the trust agreement to pass to the beneficiaries named in the trust, normally your children, while at the same time allowing your spouse to maintain rights to the trust assets and the income they generate during the remainder of your spouse’s life. Upon the spouse’s death, the assets can pass free of estate tax to the next generation. A Family Trusts is a trust that bypasses the surviving spouse and distributes your assets directly to the children or other heirs. A Marital Trust is a trust that qualifies under the marital deduction provision in the Internal Revenue Code in which the surviving spouse receives all of the trust income for life, after which any assets in the trust are subject to Federal Estate Tax.
Other types of trusts that may be beneficial in your estate planning are: A Living Trust or inter vivos trust is created during your lifetime for the purpose of long term property management and to avoid probate of your estate, which can hold all of your assets or just specific assets like your mineral interests. An Irrevocable Life Insurance Trust is used to generate liquidity in your estate to enable your estate to pay estate taxes, to fund a bequest, or to transfer wealth to the next generation. A Special Needs Trust is used to set aside money or property to provide current and future income for the needs of family members with disabilities while maintaining their eligibility for government benefits. A Grantor Retained Annuity Trust (GRAT) is an irrevocable trust to which you transfer assets in return for a fixed amount of income for either a given number of years or until your death. A Grantor Retained Unitrust (GRUT) is a trust similar to a GRAT, except that you receive a fixed percentage of the annual fair market value of the trust assets. With both a GRAT and A GRUT, the trust assets pass to the named remainder beneficiary(s). A Qualified Terminable Interest Property (Q-TIP) trust allows assets to be transferred between spouses. The grantor of a Q-TIP trust directs income from the assets to his or her spouse for life but has the power to direct how the assets will be distributed upon the death of that spouse; this trust also qualifies for the federal estate tax marital deduction.
While there are many other avenues to consider when making your estate plan, the various options with regard to trusts are important to consider to protect your assets, to limited your taxes, to ensure you are taken care of upon disability and to ensure your family is provided for after your death.
Texas Law Today 