Read More About TrustsWhat is a revocable living trust? A revocable living trust is usually a written document signed by the person (the "trustor") creating the trust naming a person to manage assets to be held in the trust (the "trustee") for a "beneficiary" on the terms and for the purposes the trustor specifies. A living revocable trust is revokable at any time during the trustor's lifetime if the trustor is competent. Revocable living trusts are usually created by a declaration of the owner of the property that the owner holds some property or assets as trustee, or by a transfer of these assets by the owner during the owner’s lifetime in trust to the trustee (called "living trusts") or by a transfer property by the owner by will or by other instrument taking effect upon the death of the owner (called "testamentary trusts") to another person as trustee. All trusts must be funded by transferring the trust assets to the trustee of the trust to make your trust effective. You can be the initial trustee of your revocable living trust. If you cannot act as trustee, a person whom you appoint can then act as sucessor trustee. The sucessor trustee could be your spouse who could also be your co trustee. If you or your spouse become incapacitated, the successor trustee assumes responsibility to manage your trust without any court action. At your death, the then trustee inventories your assets, pays your debts and taxes and your assets distributed as you direct in the trust. The trustee functions like an executor would in a probate of your estate but there is no probate action or court supervision. These are many types of trusts and some of the trusts commonly used in estate planning are living trust and testamentary trusts. There are also a irrevocable life insurance trusts which are designed to hold and then distribute of life insurance proceeds in order remove the proceeds from your gross estate and eliminate estate taxes on the policies’ proceeds.
Like anything else, a living trust can appear to be complicated at first but it is quite simple. The trust will own your property and you will own the trust. When you create a living trust, you transfer your assets to your trust which you control so there is no danger of losing the property you placed in your trust. Further, since you don’t own the property you transferred to the trust, there is no property for the courts to probate after you die. A revocable living trust avoids the probate of assets located out of state. A trust also allows you to keep control of your assets while you are living even if you become incapacitated through a successor trustee you appoint. Following your death, your desires for the distribution of the trust are carried out by person you designate as your successor trustee and no probate is required for this change of trustees. A surviving spouse can be put in charge of the trust, and to be able to use the trust for the spouse's own health, education, maintenance and support, as well as to be able to make payments to others. A so called "living trust" is made during your life and it can be fully amendable or revocable prior to the death of the first spouse to die. It will allow your heirs to avoid probating your assets and allow you to manage these assets in much the same manner as you currently has been. Your management duties and authority as Trustees will be essentially the same as they were before you establish the Trust. It is not necessary to obtain any special tax I.D. numbers or keep special types of accounting records other than careful records such as a prudent person would generally maintain regarding the management of his or her property. You are not required to file any special tax forms. How can a living trust minimize taxes? If everything is left to the surviving spouse, there will be no estate taxes regardless of the size of their estate. In 2011 or 2012, if surviving spouse dies with an estate in excess of $5 million net plus the unused portion of deceased spouse's $5 million exemption, i.e. you and your spouse can leave up to $10 million estate tax-free to your heirs before your spouse’s heirs get a estate tax bill starting at 35% of the excess. Again, this arrangement is only for the years 2011 and 2012. Since your date of death is unknown, all these confusing tax rules mean you should assume the most likely worse case scenario that your estate taxes and, if estate taxes may be reduced or eliminated by a trust, you should consider such a trust. If there are no potential estate taxes to reduce, you need to determine whether it makes sense to put your home in trust to avoid probate or consider the other alternatives discussed on this site. What does a trust cost? Obviously, there are legal expenses to create a trust but, compared to the possible tax and probate costs, it can be very cost and time effective for the heirs. The cost of having a trust drawn up professionally usually depends on the size and complexity of your estate. More comprehensive estate planning and preparation of other documents are usually charged at an hourly rate. However, if you have a simple estate, the cost may be modest, and you will have the benefit of professional assistance to ensure that your trust meets the standards for validity with one of our TRUST packages. Call to make a complimentary No-Obligation 30 Minute initial estate planning consultation. Then, download and complete the appropriate worksheet which will provide the information needed for our initial consultation. Should everyone have a living trust? The more there is a risk of probate or estate taxes for your estate, the more likely you need a trust. However, living trusts are not court supervised and a trustee who breaches your trust may be able to cause more harm as a result. A trust will cost more than a will but the difference in cost may be usually be insignificant if a probate is required. What you should know about joint tenancy . Placing your home in joint tenancy or in community property with a right of survivorship with your spouse, automatically passes the property upon your death avoiding probate. However, there are capital gains to consider and other potential problems with these devices besides avoiding probate. A surviving joint tenant or spouse who had provided no financial contribution toward the acquisition of an appreciated asset like a home often ends up with a new adjusted basis equal to its value as of he date of death for capital gains and depreciation purposes which is beneficial but spouses typically do provide contribute financially toward the acquisition of assets like a home. A surviving joint tenant spouse who had provided a financial contribution on assets that had appreciated in value often ends up without a new adjusted basis that is less than what surviving joint tenant spouse would receive if the spouses held property as community property. Upon a death of a spouse, if spouses hold property as joint tenants or tenants in common, the property is treated as the separate property of each spouse and only the decedents' half of the property receives the stepped-up basis. Upon a death of a spouse, if spouses hold property as community property, the surviving spouse's half interest in community property, as well as the decedent's half, both get a so called “stepped-up” basis. Where property has appreciated at the time of the first spouse's death, this step-up of both halves of community property provides potentially advantages to the surviving spouse over jointly held property. A higher basis translates to a smaller gain should the spouse sell the property, and if the asset is depreciable, larger depreciation deductions will result. Since assets generally appreciate over time, there usually is a tax incentive for most spouses to classify assets as community property. Even though Federal tax laws allows each individual taxpayer to exclude up to $250,000 of gain from the sale of a home, if certain ownership and occupancy requirements are met, i.e. lived in the home for two years of the last five years before sale, many California residences have appreciated beyond the $250,000 exclusion. If an individual is unable to exclude all or part of the gain, then the gain is taxable as a capital gain in the year of sale.
Joint tenancy is also problematic because it can negatively impact your ability to refinance or sell your home. Deeding your home to another person as joint tenants makes that person is an owner. If you want to refinance or sell the property, it requires a court partition action if the other joint tenant refuses. Further, if you do sell, the other joint tenant may not be eligible for capital gains exclusion if the other joint tenant did not own the home and live in it for two of the five years prior to the sale. If so, if there was for example $250,000 of gain on the sale, the other joint tenant would pay taxes on ½ that gain. Joint tenancy also does not provide for children from prior marriages because the surviving tenant spouse inherits all of joint tenancy property. If a joint tenancy doesn’t accomplish your objectives or could result in adverse taxes consequences to your heirs, put your home in a revocable trust to avoid probate. What is community property with a right of survivorship? Community property with a right of survivorship vests the surviving spouse with outright ownership of the decedent’s one-half community property interest just like joint tenancy with the relative tax advantages of holding title as community property. If a joint tenancy accomplishes your objectives, community property with a right of survivorship might be even better because it not only avoids probate but can provide a step-up in basis. If a married couple combined estates is less than the applicable exclusion amount there is usually no need for estate tax planning. Even in a estate with a need to avoid estate taxes, a community property with a right of survivorship deed may preferred to transfer to the surviving spouse the personal residence. Further, if you own property which you acquired prior to marriage or by gift or inheritance during marriage, that is your separate property. If you deed your separate property into community property, you will be transmuting or changing your separate property interest which you own 100% into a community interest in which you have only a one half interest with the same control problems as a joint tenancy. If a community property with a right of survivorship deed doesn’t accomplish your objectives, put your home in a revocable trust to avoid probate.
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