Read Findlay, Ohio wrongful death lawyer Dale Emch’s Toledo Blade “Legal Briefs” article which addresses the use of trusts in estate planning.
Dear Dale: I have several friends who have trusts and I was wondering if a trust would be right for me and my wife. Is there a particular financial situation where a trust is beneficial? What are the benefits and downsides of a trust? How does one find a competent attorney that does trusts? And is it worth the cost to set up a trust?
If an estate’s assets are within a trust, the trustee can distribute those assets according to the requirements of the trust document without the oversight of the probate court. Answer: Trusts can be useful estate planning tools, but whether it makes sense to create trusts for you and your wife is so fact specific that I won’t be able to answer your question directly. Instead, I’ll try to give you an idea of why people create trusts so you can decide if it’s something you should discuss with an attorney.I consulted an attorney friend of mine who specializes in estate planning to give me the nuts and bolts of what can become a very complicated area of law.
Attorneys set up trusts for their clients for a number of different reasons. If a couple has a lot of assets – money, stocks, real estate interests, business entities – trusts may be set up to minimize the impact of federal estate taxes. For instance, the federal government taxes at a rate of 45 percent of the estate’s net value in excess of $3.5 million. As a beneficiary, a surviving spouse can take a dollar-for-dollar exemption in order to avoid that tax. But when the second spouse dies, the tax man will get his sizeable cut. Putting money into a marital deduction trust – sometimes called an A-B trust – allows a couple to keep assets in two different pots, which can help shelter estate assets from federal estate taxes.
Ohio also has an estate tax that kicks in for estates with no surviving spouse in excess of $338,333, but the top tax bracket is significantly lower than the federal tax. Still, the same general concept applies. So, minimizing federal and state estate taxes is one reason for setting up a trust.
Avoiding taking your estate through the probate court process is another reason attorneys sometimes recommend setting up trusts. If someone dies without a trust, the probate court will oversee the administration of the estate. This means that the executor or administrator of the estate will need to comply with the court’s rules and account for actions taken on the estate’s behalf. It also means that the estate could incur expenses charged by the executor or administrator and attorney fees.
But, as the trust attorney I consulted for this column pointed out, lack of oversight isn’t always a good thing. If the trustee gets up to mischief by siphoning off money or not distributing assets to beneficiaries, that can be hard to detect. So, as much as people talk about wanting to avoid the probate process, at least the court can try to ensure the estate assets are being properly distributed. If a trustee violates her fiduciary responsibilities, the probate court can step in and take action to correct the problem.
Trusts also are established to provide a stream of income to younger people who may not be deemed responsible enough to receive a sizeable chunk of assets until they get a little older. Typically, the beneficiary receives a monthly allowance until a certain age when the rest of the assets are distributed.Parents of special-needs children also may want to look into setting up a trust that provides for the child while still allowing for the possibility of government benefits if applicable.
So, you can see that there are any number of scenarios in which a trust might be appropriate. That said, if you don’t have significant assets and your goal is to avoid the probate process to the extent possible, that’s easily accomplished. For instance, assets such as homes, bank accounts, insurance proceeds, and cars can all be subject to transfer on death provisions. You just have to fill out the appropriate paperwork that names the person who will receive the particular asset when you die.
You also asked about finding a competent attorney. Toledo has a number of highly qualified estate-planning lawyers. The attorney who helped me with this column said it might be helpful to find a lawyer who is a member of the American College of Trust and Estate Counsel, but attorneys not part of that association also could provide skilled representation for you.
As to whether it’s worth the cost to create a trust, my answer would be if you conclude it would be a beneficial estate-planning tool, it’s definitely worth the money.
If you or someone you know has suffered the loss of a loved one due to tragic circumstances, you need information. Contact our office at 800.637.8170 to order your free copy of The Ohio Wrongful Death Book.