Personal Affairs - June 2018

Is a Will Enough? The Benefits of Establishing a Trust
 
During their working lives, too many people fail to think about estate planning.

Shocking numbers haven’t even prepared a will. By the time you approach retirement age, you probably accomplished this. But is a will enough?

Unfortunately, many in their 40s, 50s, and 60s have estate-planning issues thrust upon them because of the death of their parents.

In my case, my mother had a will when she passed away in Vermont and I was her executor living in Virginia. I had to go through a time-consuming probate process to clear her property and other assets for distribution as she specified in the will. A will is an instruction sheet for probate; it’s not the ticket to get around probate.

That was in contrast to my wife’s experience with the recent passing of her mother in Oklahoma after a period of severe illness.

Fortunately, her mom hired an attorney to establish a revocable trust, advance medical directives, and powers of attorney that enabled us to deal with her finances, health insurance, credit cards, banks, health care providers, hospice, and other agencies during her final months when she couldn’t care for herself.

Since my wife was the successor trustee of the trust, and her mother’s bank accounts and other property were in the name of the trust, it was a simple matter to deal with her final expenses. The trust eliminated the probate process, and we distributed the assets to the other heirs based on the trust instructions.

This experience validated my wife’s and my decision to set up a revocable family trust many years ago, for a number of reasons.

At the time, there was some uncertainty about the future of the estate tax and a trust was one way of preserving assets for our heirs. Since the law changed to exempt assets up to $11.2 million (inflation adjusted each year) per individual in 2018 from estate taxes, that is no longer an issue for the vast majority.

Because one of our children had gone through a divorce, we also saw a trust as a way to ensure our family assets would stay within the family (children and grandchildren) rather than to a former spouse, should one or more of the children’s families break up after our deaths.

Finally, our own experience with the probate process convinced us the revocable trust was the way to protect our own children from having to deal with that.

How much does it cost to set up a trust?

If you go to an attorney, most estimates are $1,000 to $3,000 or more, depending on what services are included. If you go with a legal firm specializing in estate planning, you might pay up to $5,000 or more for all-inclusive services.

Another option is online companies that offer templates for trusts and other documents for several hundred dollars or less. This do-it-yourself method puts the work and risk on you to process everything correctly.

Military retirees also might be able to get such forms and some assistance from military legal assistance offices, as my spouse and I initially did.

We failed to follow through (see below) on our original trust after realizing we needed a more personalized plan. We regrouped and went to a civilian firm. In addition to the basic trust document, the firm provided pour-over trusts for our children, advance medical directives, and powers of attorney and took care of the retitling of our house and establishing the new deed, among other things.

What are potential problems with setting up a trust?

If you’re like my wife and I, the biggest problem is putting the trust into effect — which means retitling your home under the trust and establishing the trust as the beneficiary of your life insurance and the owner of your brokerage accounts, mutual funds, and bank accounts, etcetera.

Those things can be a hassle, and we never got around to doing it on our “first-try” trust.

Whatever assets (e.g., vehicles) are not put in the name of the trust will be subject to probate upon your death.

Another potential problem is not keeping the trust document up-to-date over time. For example, if you establish more than one child as joint successor trustees and one passes away (as my wife’s brother did), you must amend the trust to reflect that death and establish a new successor trustee or trustees. The same is true if you want to make changes to your designated heirs due to a death or divorce.

Another potential issue is how you safeguard your trust documents.

For one thing, DO NOT put your trust documents in a safe deposit box (as my mother-in-law did). If that’s the only document you have to establish the successor trustee, your heirs will have great difficulty accessing it.

Make sure to provide your successor trustees a notarized copy of the trust document.

Are there assets you should not put under the trust umbrella?

If you have children of significantly different ages whom you’ve established as beneficiaries of your 401(k) or IRAs, you might want to consider leaving them that way rather than switching the beneficiary to the trust.

Why? Because children who inherit 401(k)s and IRAs must immediately start taking minimum required distributions based on their age. If you make the trust the beneficiary for a 401(k) or IRA, then each child must start taking distributions based on the age of the oldest child. If they are left as individual beneficiaries on those accounts, each child’s required annual distribution is based on his or her own age.

In our case, our oldest child is 45 and our youngest is 33. The amount the older child must take as a taxable distribution from a regular inherited IRA or 401(k) is the same either way. However, the amount the younger child would have to take is about a third higher if the trust is the heir of the account — which means she could exhaust the assets too quickly.

In the end, having a trust versus a will is a matter of cost, effort, and convenience.

Having experienced the consequences of a parent’s death without a trust convinced us, in our case, it was worth some expense and administrative effort to ensure our desired distribution of assets and save (hopefully) our grieving heirs from excessive estate burdens when the time comes.

By: Col. Steve Strobridge, USAF (Ret), MOAA; taken from the MOAA website