A trust is an agreement that one person makes to hold property, real or personal, for the benefit of another.
Trusts can be created to be effective during life or only upon death. There are many types of trusts discussed below, but the two main categories of trusts are revocable or irrevocable.
Revocable Trusts are typically created to avoid the probate process, hold real property located in other states or for privacy reasons. The creator of the trust (called grantor or settlor) has the right to revoke, amend, terminate or change the trust; in essence he or she retains all the perks of owning the property. For estate tax purposes, the property the grantor of the trust is still considered the owner.
An Irrevocable Trust cannot be amended, terminated, revoked or changed by the grantor after it has become effective. Because the grantor has basically given up the right to control the property, generally the trust property is not included in the grantor’s estate at death. High net worth individuals often use Irrevocable Trusts as asset protection to protect their property from creditors.
Other Types of Trusts:
A Bypass Trust is created in a person’s Will to hold the deceased’s persons property that will not be subject to estate tax. For example in 2016, if a person has not used any of his exemption amount during his lifetime, the Bypass Trust would hold assets worth $5.45 million. This trust can provide for a surviving spouse and/or children, but at the death of the second spouse, the trust "bypasses" the estate process and is not subject to estate tax.
The U.S. now has an "unlimited marital deduction" which means anyone can pass as much property as he or she wants to his spouse without paying estate or gift tax. A Marital Trust is created generally at the death of the first spouse. The spouse is the only beneficiary during his or her life; and at the death of the surviving spouse, any assets are included in the spouse’s estate.
A Charitable Trust can be created at life or at death. A person transfers property into a trust and the trust assets benefit both a charity and named individuals.
Charitable Lead Trust
A Charitable Lead Trust provides that a charity receives distributions for a set amount of time; and after the stated time, the assets either remain in trust for the named individuals or the assets pass outright to the individuals. These trusts may be used to provide for a charity upfront, and delay distributions to individual beneficiaries until such time as the individuals may be more mature. Charitable Lead Trusts are taxable trusts.
Charitable Remainder Trust
A Charitable Remainder Trust provides a payment stream first to individual beneficiaries, then after a stated time, the remainder of the trust passes to a charity. Charitable Remainder Trust is a tax-exempt trust.
Generation Skipping Trust
A Generation Skipping Trust allows you to pass property to two or more generations below your generation without tax by utilizing the generation skipping transfer tax exemption.
Irrevocable Life Insurance Trust (ILIT)
An Irrevocable Life Insurance Trust also known as an ILIT is created during life typically to hold a life insurance policy. The purpose of an ILIT is to keep the insurance proceeds out of the taxable estate at death and to set guidelines as to how the proceeds will be used.
An IRA Trust is created for the sole purpose of holding the proceeds of an IRA or other similar type of retirement savings of a deceased person. Generally all of an IRA distribution is subject to income tax, so the IRA Trusts are created to be able to "stretch" out the proceeds of an inherited IRA both to save income taxes and to prevent the beneficiary form having access to the entire amount.
A Spendthrift Trust will ensure that your loved one does not spend the lump sum of their inheritance all at once. The Trustee you appoint has the authority to make distributions to your spouse, child or grandchild. All of the assets of the trust are used for their benefit but your loved one cannot access the assets on their own.
Contact a qualified estate planning attorney to determine whether or not one of these trusts could be beneficial for you.