A trust is created when a person transfers “stuff” to a trustee with the understanding that the trustee will manage it for the benefit of one or more beneficiaries.
“Stuff” includes any kind of property you can own: real property, such as land and buildings (including timeshares) and personal property, such as bank accounts, stocks and bonds, and personal effects.
The person who transfers the stuff to the trustee is called a “trustmaker” (also known as a settlor, grantor or trustor). Usually, the trustmaker is also the trustee (or perhaps co-trustee) and the initial beneficiary of the trust.
It is common for couples to create two separate trusts and to be the co-trustees of both of their trusts during their joint lifetimes. When one spouse dies, the other can either be sole trustee or co-trustee with one or more individuals or a trust company.
Once assets are transferred to the trustee, the trustmaker no longer holds legal title to them — even if the trustmaker and the trustee are the same person. Thus, if the trustmaker dies or becomes incapacitated, the trust continues and the successor trustee (who is named in the controlling document) takes over administering the stuff in the trust.
A trust is controlled by a “rulebook” called the “trust agreement.” The trust agreement sets out the rules about how the trust will be run. If the rulebook says that the trustmaker can revoke it or change it, the trust is what we call a “revocable trust.” People create revocable living trusts so that their stuff will not go through probate after they are gone, or through conservatorship if they become incapacitated during their lifetimes, as well as to protect the assets that their loved ones will inherit.
If the rulebook does not allow the trustmaker to change or revoke it, we have what is called an “irrevocable trust.” Irrevocable trusts are used in many estate plans. They allow trustmakers to make gifts but keep the recipients from having complete control over the gifted assets. They can help provide tax savings, creditor protection and expert management of assets.
Trusts are often the building blocks of effective estate plans. They provide simplicity, flexibility and predictability in dealing with your assets. They also give you the peace of mind of knowing that you have arranged your affairs to ensure that your wishes will be carried out and that future transitions (such as your incapacity or death) will be much easier on your loved ones.
SCOTT MAKUAKANE, Counselor at Law
Focusing exclusively on estate planning and trust law.
est8planning.com
808-587-8227 | maku@est8planning.com
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