If you are like many homeowners, your home is likely your family’s most valuable and treasured asset. In light of this, you want to plan wisely to ensure your home will pass to your loved ones in the most efficient and safe manner possible when you pass away or in the event you become incapacitated by illness or injury.
Proper estate planning is as much a part of responsible homeownership as having homeowner’s insurance or keeping your home well maintained. When it comes to including your home in your estate plan, you have a variety of different planning vehicles to choose from. Howver, putting your home into a trust is often the smartest choice.
In this two-part series we will discuss how trusts work (both revocable and irrevocable) and outline the most common advantages of using a trust to pass your home to your loved ones.
What is a Trust?
In simplest terms, a trust is an agreement between the “Grantor (the person who puts assets into the trust)” and the “Trustee (the person who agrees to hold those assets)” to hold title to assets for the benefit of the “Beneficiary (the person/people who benefits from the assets held in trust).” When the trust is a Revocable Living Trust, this agreement is typically made between YOU as the Grantor, and YOU as the Trustee, for the benefit of YOU as the beneficiary.
Why would you want to make an agreement with yourself, to hold title to assets for yourself, for the benefit of yourself? By doing so, you remove those assets from the jurisdiction of the court in the event you become incapacitated or when you pass away. Instead, you give the power to transfer those assets to your successor trustee without government or court intervention and keep it all totally private. This saves your family significant time, money, and the unnecessary hassle of probate court.
Types of Trusts
While there are numerous different types of trusts available, when it comes to passing your home to your loved ones, the two most commonly used trusts are a revocable living trust and an irrevocable trust.
Revocable Living Trust
When using a revocable living trust (or living trust), you are free to change the trust’s terms or even terminate the trust completely at any point while you are living, thus the term “living” trust. You typically act as your own trustee during your lifetime, and then you name someone (and ideally more than one person) as successor trustee(s) to take over management of the trust when you pass away or in the event of your incapacity.
At that point, your successor trustee will be responsible for managing the assets, and eventually distributing the trust assets to your chosen beneficiaries according to the trust’s instructions. Because you remain in control of the assets held by a living trust,the assets are still considered part of your estate for estate tax purposes, and assets held in a living trust may not be protected from your creditors or lawsuits during your lifetime (although you can add language to the trust for additional protection).
The key benefit of a living trust is to pass your assets (including, and especially your home) without any need for court or government intervention, and to ensure your home (and other assets) pass in the way you want, to the people you want.
Unlike a revocable living trust, an irrevocable trust is (as the name implies), irrevocable. This means that the terms of the trust cannot be changed, and the trust cannot be terminated once it has been executed. When you transfer assets into an irrevocable trust, you relinquish all ownership of the assets, and the trustee you have named takes total control of the assets transferred into the name of the trust. Because you no longer own the assets held by the trust, those assets are no longer considered part of your estate, and they typically will not be subject to estate taxes upon your death. As long as the trust is properly constructed, the assets will not be vulnerable to creditors or lawsuits.
Although avoiding estate taxes and gaining protection from creditors and lawsuits may sound like a huge benefit, irrevocable trusts come with some serious restrictions and can be quite complex to set up. Because you no longer own the assets held in an irrevocable trust and generally cannot change the trust terms or terminate the trust once it has been executed, putting your home in this type of trust should only be done with very clear and specific legal guidance by a lawyer who specializes in asset protection.
In light of these factors, if you are looking to set up an irrevocable trust in order to qualify for Medicaid, lower your estate tax liability, or for some other reason, meet with us to discuss your options.
Putting Your Home into a Trust
For a trust to function properly, it is not enough to simply list the assets you want the trust to cover. When you create your trust, you must also transfer the legal title of your home and any other assets you want held by the trust from your name into the name of the trust. Retitling assets in this manner is known as “funding” your trust.
Properly funding the trust is extremely important. If an asset such as your home has not been properly funded to the trust, the trust may not work possibly leaving your family in court in order to take over ownership of the property.
While many lawyers will create a trust for you, few will ensure your trust is properly funded. As your Personal Family Lawyer®, we will not only make sure your home and other assets are properly titled when you initially create your trust, we will also ensure that any new assets you acquire over the course of your life are inventoried and properly funded to your trust. This will keep your assets from being lost, as well as prevent your family from being inadvertently forced into court because your plan was never fully completed.
Next week, in part two, we will continue with our discussion of the benefits of putting your family home in a trust.
This article is a service of Reflections Life Planning LLC, Personal Family Lawyer®. We do not just draft documents; we ensure you make informed and empowered decisions about life and death, for yourself and the people you love. That’s why we offer a Family Wealth Planning Session™, during which you will get more financially organized than you’ve ever been before and make all the best choices for the people you love. You can begin by calling our office today to schedule a Family Wealth Planning Session and mention this article to find out how to get this $750 session at no charge.