What is a Trust?
A trust is a document that transfers control of your assets to a trustee, which can be you initially and then someone else when a triggering event happens, such as your incapacitation. When you create a trust and name a trustee, you do so as the trustor (or grantor).
Under Ohio law, assets in the trust — checking and savings accounts, stock holdings, tangible assets, a home or other real estate — can be allocated immediately, or later upon a “springing” event such as death or incapacitation. Like a will, a trust also names beneficiaries. The terms of the trust are contained in a notarized document called a trust agreement or declaration of trust.
Another name for this type of trust is a living trust, or in Latin, an inter vivos trust. Trusts can be either revocable (able to be changed or canceled at any time) or irrevocable. A trust can also be an individual or shared trust. An individual trust is one that covers solely held assets. A shared trust includes jointly held property, so when one grantor of the trust passes away, control of the trust falls to the remaining grantor.
A trust can also be used to transfer control of your medical decisions in the event you become incapable of making such decisions yourself.
If you set up a medical trust to appoint someone to make decisions for you when you are unable to do so, you’ll also probably need to establish an advanced health directive detailing your end-of-life wishes and then empower someone with a healthcare power of attorney. A medical trust can be used in adjunct to a living trust to cover you and your estate in the event of incapacitation.
Advantages of a Living Trust
A living trust accomplishes nearly everything a will can, but it has one important advantage. It avoids going through probate court proceedings upon your death. Unlike a will, however, a trust cannot name a caretaker for your minor children. A will may also still need to be in place alongside a trust to cover assets that somehow escape the trust, whether by late acquisition or omission by mistake.
A will names an executor who must work with and through the probate court to assess, sell, and distribute your assets to your creditors and beneficiaries. This process can take months or even a year or more to conclude. A trust avoids all of this, and the named trustee can act immediately.
Another important feature of a living trust is that it is completely private. A will, once it enters probate, becomes a matter of public record. A trust never becomes public. However, like a will, overlooked or disgruntled beneficiaries can still legally challenge the details of a trust.
Another factor to consider in both wills and trusts is that assets held jointly with the right of survivorship pass automatically to the joint holder and do not face probate, even in the absence of a will. Life insurance policies, retirement annuities, and other items that name beneficiaries avoid probate.
How a Skilled Attorney Can Help
Trusts can be used for many purposes besides transfer of assets and medical decision-making, including reducing potential tax liabilities with a bypass trust. A Totten trust can ensure transfer of banking and securities accounts (but not real assets) without probate. A spendthrift trust can help protect money left to beneficiaries who are financially irresponsible. Charitable trusts award assets to causes of your choosing.
Everyone has different needs and goals in planning for the future. I will work with you to arrive at the best possible combination of estate planning instruments, including wills and trusts, to help you achieve peace of mind for any future eventualities, both for you and your loved ones.