Estate Planning: Trusts

Law School

IV. Trusts

A. Types of Trusts

Trusts are versatile legal entities created to hold assets for the benefit of certain persons or entities, with a trustee managing the trust. Trusts can be categorized based on their revocability and when they take effect.

Revocable Trusts: Often referred to as living trusts, these are created during the trustor's lifetime and can be altered or revoked entirely by the trustor as long as they are alive and competent. Revocable trusts are used for asset management, probate avoidance, and privacy benefits.

Irrevocable Trusts: Once established, these trusts cannot be modified or revoked without the beneficiaries' consent. The grantor effectively relinquishes control over the assets and the trust. This type of trust is beneficial for estate tax planning and asset protection.

Living Trusts: Created during the lifetime of the trustor, living trusts can be either revocable or irrevocable. They allow for the management of the trustor's assets during their lifetime and distribution upon their death.

Testamentary Trusts: Unlike living trusts, testamentary trusts are established through a will and only take effect upon the death of the trustor. They are used to manage and protect assets for beneficiaries according to the deceased's wishes.

B. Creation and Funding of Trusts

The process of creating a trust involves drafting a trust document, naming the trustee and beneficiaries, and specifying the terms under which the trust will operate. Critical steps include:

Drafting the Trust Document: Legal documentation that outlines the trust's terms, the distribution of assets, and the powers granted to the trustee.

Selecting a Trustee: The trustor must appoint a trustee who will manage the trust's assets. This can be an individual or an institution.

Funding the Trust: The trust must be funded by transferring assets into it, which may include bank accounts, real estate, stocks, or personal property. The trust only controls assets that have been formally transferred into it.

C. Roles and Responsibilities of Trustees

Trustees are legally obligated to manage the trust in the best interests of the beneficiaries according to the trust document's terms. Their duties include:

Duty of Loyalty: Trustees must act in the best interest of the beneficiaries, avoiding conflicts of interest.

Duty of Care: Trustees must manage the trust's assets prudently, which includes making informed decisions regarding investments and asset management.

Duty to Inform: Trustees are required to keep beneficiaries informed about the trust's administration and changes.

Duty to Account: Trustees must provide regular accounting of trust assets, liabilities, receipts, and disbursements.

D. Rights of Beneficiaries

Beneficiaries of a trust have rights that ensure the trust is being managed in accordance with its terms and their best interests. These rights include:

Right to Information: Beneficiaries have the right to be informed about the trust and its administration.

Right to Distributions: Beneficiaries are entitled to receive distributions from the trust as specified in the trust document.

Right to Challenge Trustees: If beneficiaries believe the trustee is not acting in their best interest, they have the right to challenge the trustee's actions in court.

E. Modification and Termination of Trusts

The modification or termination of a trust depends on its type (revocable vs. irrevocable) and the terms set forth in the trust document.

Revocable Trusts: The trustor can modify or terminate these trusts at any time without the beneficiaries' consent.

Irrevocable Trusts: Modification or termination generally requires the consent of all beneficiaries, and sometimes court approval, unless provisions in the trust document specify conditions under which the trust can be altered.

Conditions for Termination: Trusts can be terminated when the purpose of the trust has been fulfilled, by the terms specified in the trust agreement, or if maintaining the trust becomes

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