The Dangers of Leaving Your Trust Unfunded
A revocable living trust is a type of trust that is created and that can be modified while the trust maker is still alive. This structure can provide a comprehensive estate planning solution above and beyond what a standard will can offer. Assets within the trust can be managed, invested, and spent for the benefit of the trust maker during his or her lifetime. At death, a trustee who has been appointed by the trust maker steps in to manage and distribute the property within the trust as outlined in the trust agreement.
There is no either/or when it comes to having a trust or a simple will; having both is plausible. A will should be used to manage assets not mentioned in a trust and to name a guardian for any minors involved. A benefit of establishing a revocable living trust is its ability to provide more direction regarding the use of inherited assets above and beyond what a will can do. A revocable living trust with a pour-over will can help beneficiaries avoid probate, maintain family privacy, and provide a contingency plan if you are ever incapacitated.
But what happens if the trust never gets funded? An unfunded trust is one that does not hold title to the grantor's stated assets at death, potentially leaving you with a useless stack of paper. This is one of the biggest mistakes people make when establishing living trusts. A revocable living trust becomes irrevocable at the grantor's death, meaning that it cannot be changed by anyone. Consequently, assets and property will not be distributed following the guidelines of the trust agreement.
The process of assigning or transferring accounts and assets to a trust should begin as soon as the trust is executed since only property titled in the trust's name can be managed by the trustee. Assets won't pass to the intended beneficiaries and may be subject to probate if they aren't duly assigned or lawfully transferred to the trust.
Establishing and properly funding a living trust are crucial steps to achieving your estate planning goals. The process requires the trust maker to transfer assets titled in their individual name and either retitle them or designate the revocable living trust as the primary beneficiary.
Here are a few simple ways to fund your revocable living trust:
- Retitle real estate, or property, in the name of your revocable living trust.
- Put bank accounts, brokerage and other financial accounts in the name of your revocable living trust.
- Change the ownership of life insurance policies and annuity contracts to your revocable living trust.
Retitling physical property like homes, buildings, and raw land is slightly more complicated. Generally, the trust maker is required to record the deed in the name of the trust. However, these requirements vary by state and will require you to seek out the services of an attorney licensed in the state where the property is located.
People can fund a trust several ways, including legal assignment or retitling the assets into the name of the trust. And although it is hotly debated in some legal and personal finance circles, you may choose to name your revocable living trust as the beneficiary of your retirement account(s) if you have concerns regarding your beneficiaries’ ability to handle such an inheritance responsibly.
Ultimately, it is your responsibility to fund the trust to ensure your wishes are carried out. If you have a revocable living trust, you must take affirmative steps to transfer your assets into the name of the trust. If you fail to fund your revocable living trust and something happens to you, your family will not be able to avoid probate, making any efforts you’ve taken and any fees you’ve paid to an estate attorney virtually worthless.
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Malcolm Ethridge, CFP® is the Managing Partner of Capital Area Planning Group based in Washington, DC. He is also the Managing Partner of Capital Area Tax Consultants.
Malcolm’s areas of expertise include retirement planning, investment portfolio development, tax planning, insurance, equity compensation and other executive benefits.
Disclosures:
The information provided is for educational and informational purposes only, does not constitute investment advice, and should not be relied upon as such. Be sure to consult with your legal advisors before taking any action that could have tax and legal consequences.
Investments in securities and insurance products are:
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