You have options when you are planning your estate as a married person. It is possible for each party to create their own estate plan, but many people will take a shared approach.
The appropriate course of action will depend on the intentions of the people involved. If you and your spouse do not have children from previous marriages and you own most of your valuable property together, a shared living trust can be the right choice.
Shared Living Trust Overview
A standard arrangement would be for you and your spouse to act as co-trustees while you are living. The two of you would have complete control of the assets that are signed over to the trust. Either one of you could transact business for the trust on one signature. Although there are exceptions for separate assets transferred to the trust, and subject to a property agreement that may have been executed when creating your trust, dissolving the joint trust would require the approval of both spouses.
If you want to change the terms of your joint trust, you would have to do this in cooperation with one another. You fund the trust with assets that you own jointly, or separately, and you would agree to leave your respective interests to one another.
It is also possible to transfer personal property into the trust. This would include assets that have no title. For example, let’s say that you own an antique collection, and your husband has a gun collection. You can leave those collections to a child that likes antiques. Your husband could leave the guns to a different child, grandchild, or another beneficiary.
After the death of one spouse, the other spouse would become the sole trustee of the living trust. At that point, they would have absolute authority with one exception. The surviving spouse would not be able to change the terms that apply to the deceased spouse’s share of the trust.
Living Trust Benefits
In addition to the fact that a shared living trust will create a streamlined process for a married couple, there are other benefits. If you use a will to state your final wishes, it would be admitted to probate, and this legal process creates procedural hurdles.
The executor that is named in the document would administer the estate under the supervision of the probate court. Creditors would be given time to come forward seeking payment, and the court would examine the will to make sure that it is valid.
No inheritances would be distributed while the estate is being probated by the court, and it will take six to 18 months at a minimum to complete the probate process.
Probate expenses include the executor’s payment, court costs, potential legal and accounting fees, appraisal liquidation charges, and incidentals. The red ink will reduce the value of the estate before it is transferred to the heirs. Those costs are essentially coming out of their pockets.
Another drawback is the fact that probate records are available to the general public, so there is a loss of privacy.
When assets are distributed through the terms of a living trust, the probate court is not involved, so these negatives are avoided.
Another advantage is the ability to provide spendthrift protection for beneficiaries. You can include a spendthrift clause meaning a beneficiary – or beneficiaries – would not have access to the principal unless required for their health, education, or even some support. Structured properly, the creditors of your beneficiary would not be able to “step into their shoes” and take the money. The assets would be protected.
To prevent reckless spending, you could instruct the trustee to distribute a certain amount each month, or you could dictate another type of incremental payout arrangement.
Other Options for Married Couples
When a married couple does not have a lot of shared property and they are not committed to leaving most of their property to one another, a separate living trust may be the appropriate choice.
There is another legal device called a qualified terminable interest property (QTIP) trust. It can be ideal for a parent who has considerable resources and is getting remarried.
If you implement this strategy, your new spouse would be the first beneficiary, and your children would be the successor beneficiaries upon the spouse’s death. You would name a trustee to act as the administrator of the trust. Impartiality would be a key attribute, so you may want to consider using a professional fiduciary.
If the QTIP springs into effect upon your death, your spouse would receive distributions of the trust’s income each year. They would be able to use property that is owned by the trust. For example, they could continue to live in a home that is technically held by the trust.
They would be comfortable and secure for the rest of their life, but they would not be able to change the terms. After their death, the children would become the beneficiaries of the trust.
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