The revocable living trust is a very popular estate planning device and is the right choice for a wide range of people. It is an effective alternative to a simple will because you can accomplish more objectives with a living trust while also avoiding court intervention.
You probably want your loved ones to receive their inheritances timely and probate slows down everything. A will must be admitted to probate, but a living trust doesn’t. Distributions through a living trust are not subject to this legal process.
When you have a living trust, you can include a spendthrift clause to protect your beneficiary from his or her creditors. You can provide for modest incremental distributions over time to prevent your beneficiaries from burning through their inheritances too quickly.
These are just a couple of the benefits of a living trust. Let us move on and explain the duties of a trustee.
If you establish a revocable living trust, you can be the trustee while you are alive and well. You transfer your property to the trust, while retaining the same control over the property you had before.
We use the term “alive and well” because you will name a disability trustee to step in if you suffer cognitive impairment or some other disability.
For estate administration after you pass, your successor trustee will administer the trust and ensure your property is distributed to your named beneficiaries. The trustee will be responsible for all the hands-on administrative tasks that must be completed.
After your passing, the trustee will obtain certified copies of your death certificate and they will coordinate with the executor (personal representative) of your will if this is a different person. Usually your trustee will also be the executor as people with living trusts typically have pour-over wills.
What is a pour-over will? Even if you have a trust, you may own certain assets in your individual name when you pass. Depending on the nature and value of these assets, your pour-over will can facilitate the transfer of the assets into your trust, but a probate may be required.
The funeral home normally will notify the Department of Health and the Social Security Administration of your passing, but if not, the trustee/executor may need to do so. They will also notify the beneficiaries, pay any outstanding costs, file the required documentation with the county of residence, and finally they will distribute the trust assets. Before they can do that, they will obtain an Employer Identification Number from the IRS, and file the necessary state and federal income tax returns. If the estate is of sufficient size, they will also need to file a federal estate tax return.
Only when everything is in order and all required actions have been completed will the trustee distribute the remaining assets to the beneficiaries in accordance with your wishes.
Choosing a Trustee
As you can see, there are a number of different administrative and procedural steps that must be taken by the trustee. You should select someone who is fully capable of completing these tasks and willing to do so.
The nature of the distributions will impact trustee selection. If you are going to have all the assets distributed shortly after your passing, the trustee’s job will be relatively limited. Longevity won’t be a factor, and the trustee will not be making a long-term commitment.
On the other hand, if the trust contains income-producing assets and you want it to remain intact for an extended period of time, the trustee’s role will be far more complicated. It will be more time intensive and a professional level of financial expertise may be desirable.
You may instruct the trustee on how you want the assets distributed. For example, you can require distribution of the earnings and even part of the principal so the beneficiary receives a specific dollar amount each month. You can direct distributions at specific times after your death, such as at the 5, 10 and 15 year marks. Or you can give the trustee the latitude to make discretionary distributions as needed.
If you dictate this type of arrangement, you may be concerned about accusations of favoritism among the beneficiaries if you choose a family member or friend.
For these reasons, many people will use a professional fiduciary, such as a trust company, the trust department of a bank, or a law firm. When you use a qualified trustee without any personal attachments, you avoid this issue while ensuring the trust will be effectively administered.
Schedule a Consultation!
We are here to help if you are ready to work with a Oklahoma City estate planning attorney to put a plan in place. You can schedule a consultation if you call us at 405-843-6100, or you can fill out our contact form if you would prefer to send us a message.