Trusts are a legal tool often used to pass wealth to a spouse or to the next generation, usually with rules attached. A trust is a formal legal relationship where a property owner (the Settlor or Grantor) conveys legal title to a third party (the Trustee) who then holds or uses trust property for the benefit of a person (the Beneficiary). Most trusts are written, but a trust can be established orally or can arise by operation of law.
Not everyone needs a trust, but they can be game changers when used for the right reasons. Here are a few reasons to consider using a trust: (1) controlling how your property is used by beneficiaries; (2) privacy and avoiding probate; (3) tax planning or public benefits planning; (4) disability and special needs planning; and (5) creditor protection. Trusts can also be used to avoid ancillary probate estates if you own real property in another State.
If you decide to use a trust, be certain you understand what your trust is supposed to accomplish. Knowing the purpose of the trust will help you communicate your goals with others and will give your lawyer the ability to determine whether you really need a trust, or whether some other, less complicated, legal tool would be a better fit. If the right tool for the job is a trust, then decisions need to be made regarding whether to establish it during your lifetime (a Living or inter vivos trust), or at death (a testamentary trust). Should the trust be revocable or irrevocable? Should all of your property be placed in the trust, or should you funds it with a portion of your estate? Who will serve as trustee? What rules should be included in your trust agreement regarding how trust property is used? If someone tries to sell you a trust without helping you answer these questions, then you’ve found a hammer salesman – someone who thinks every problem looks like a nail.
Introduction to Trusts for Elders and Special Needs Beneficiaries
- Introduction to Trusts
- Why Protect Assets?
- What is Supplemental Security Income?
- What is Medicaid?
- Why use a Special Needs Trust?
- What can a Special Needs Trust pay for?
Trust Formation and Structure
- Creating the Trust
- Trust Instrument and Essential Terms
- The Trustee
- Beneficiaries (of Trusts)
- Purpose (of the Trust)
- Revocation, Modification, Termination
- Spendthrift Provisions
- Discretion and Distribution Standards
- Construction (Construing the Trust)
Funding the Trust
Trust Administration
- Administration, generally
- Administration and Investments
- Investment Decision-making process
- Income and Principal
- Compensation
- Accountings
- Bond
- Declaratory Judgment
- Distributions, generally
- Trust Ownership of a home
- Distributions to family members
Medicaid Trust Rules
- Trust Rules, generally
- Self-Settled Trusts, generally
- Third Party Trusts, generally
- Income Only Trusts
- Special Needs Trusts
- Pooled Trusts
- Sole Benefit Trusts
- Funding Issues Associated with Special Needs Trusts
- Distributions from Special Needs Trusts
- SNT Accounting
Eligibility for Veteran’s Aid and Attendance
- VA Aid and Attendance, generally
- Treatment of Trusts
- Revocable Trusts
- Irrevocable Trusts
Tax Issues
Resources:
BLOG POSTS
Income Tax Return for Estates and Trusts – Form 1041
What is Form 1041 used for? If an estate or trust has gross income of $600 or more during a tax year, it must file a tax return. The fiduciary of a domestic decedent’s estate, trust, or bankruptcy estate uses Form 1041 to report: The income, deductions, gains, losses, etc., of the estate or trust; […]
Notice Concerning Fiduciary Relationship – IRS Form 56
IRS Form 56 is used to notify the IRS of the creation or termination of a fiduciary relationship under section 6903 and provide the qualification for the fiduciary relationship under section 6036. Form 56 cannot be used to update the last known address of the person, business, or entity for whom you are acting. Use […]
Getting Organized
Many people think that estate planning is just having documents prepared. They have a lawyer prepare a Will, get it signed and they’re done. As Lee Corso says on Game Day, “Not so fast!” The hardest part of stepping into someone else’s shoes, whether its as an agent under a power of attorney, or as […]
Construing the Meaning of a Trust: Settlor’s Intent
If called upon to determine the meaning of a trust, or to resolve some ambiguity, Court look for the intent of the Settlor. As stated in Strange v. Towns, “The cardinal rule in construing a trust instrument is to discern the intent of the settlor and to effectuate that intent within the language used and […]
Sample Trust Language Appointing Trustee
The following sample language comes from a trust that was drafted years ago, however it remains useful in understanding issues to consider when drafting trusts: Appointment of Trustee. During my lifetime, [TRUSTEE] shall act as the sole Trustee of all trusts created in this agreement, with the full powers, duties and responsibilities as set forth […]
Selecting the Trustee
One of the most important tasks when creating a trust is selecting the trustee. You can have the best trust ever written, but if the trustee doesn’t follow the trust agreement, or worse, if the trustee intentionally violates the terms of the trust, then you’ve failed. There is a saying that you should not let […]
How much protection does a Medicaid Asset Protection Trust really provide?
In Hammerberg v. Department of Human Servs. (Minn. Ct. App. 4/22/2024), the State made an estate recovery claim against what appears to have been an income only trust. Very little of the trust language appears in the decision, but the “trust instrument required the trustee to pay all income derived from the trust to the” […]
Estate and Gift Tax Exclusion Amounts
The amounts below are the estate tax exclusion amounts as provided by the IRS. Unless Congress takes action, in 2026, the exclusion amount will revert to the pre-2018 level ($5,490,000, adjusted for inflation) per deceased person. You can, however, use your exemption now. On November 26, 2019, the IRS clarified that individuals taking advantage of […]
Do I need a Gun Trust?
Gun trusts were developed so gun owners can pass their firearms to beneficiaries or heirs at death (or disability) without creating unintended legal problems. Some people (e.g., convicted felons) are not allowed to own guns. Some weapons require a specific license. The trust is intended to prevent beneficiaries who are not allowed to own guns, […]
Medicaid’s “any circumstance” test for trusts
Medicaid’s “Any Circumstance” Test for Trusts In case you missed the memo, Medicaid doesn’t like trusts. The rules relating to trusts you create with your money or property are found at 42 U.S.C. § 1396p(d). To put this discussion in context, we’ll begin with the sections relevant to the “any circumstances” test, but the full […]
