I want to wrap up my series on leaving wealth to your heirs by looking at two more types of trusts. Leaving assets in trust can protect the wealth you have accumulated but also protect your heirs. People that have never handled a sizable amount of money often mishandle it. It’s not unusual for them to be in worse financial shape after receiving the money than they were before. One important aspect of a trust is the ability to control the distribution of income and principal. This first type of trust is designed for those situations when you think your heir(s) may spend the money irresponsibly.
This type of trust restricts the amount of money that may be spent by the beneficiary. The trustee has the sole authority to make distributions from the trust either to the beneficiary directly or to make payments on behalf of the beneficiary. The trustee must follow the terms of the trust. Typically these terms are defined as the health, education and maintenance of the beneficiary. You can leave the definitions broad to give your trustee some discretion or keep the terms strict.
This type of trust is often used when the parent is concerned about a child’s ability to handle financial affairs. The parent may have observed that the child mismanages their own money. You don’t want to leave them a large amount of money when they can’t handle what they have now. The child may live an extravagant lifestyle that the parent doesn’t want to help support. A child that is living in constant financial turmoil is a good candidate for this type of trust.
The trust is written in a way that the beneficiary cannot anticipate or encumber their interest in the trust. It is written this way so that the beneficiary cannot borrow against the trust. The income they receive from the trust can also not be counted on which means the beneficiary can’t use it to qualify for a loan. Generally the trust contains specific language stating the Trustees will not be liable for, or subject to, the debts, contracts, obligations, liabilities or torts of any beneficiary.
A spendthrift trust will even be preserved through the beneficiary’s bankruptcy. Most state laws will include a trust as property of the bankruptcy estate, unless the trust contains a spendthrift clause enforceable under that state’s law. Therefore, it is very important to have the trust drawn up properly. This requires using an attorney that thoroughly understands the complex trust law unique to the state you live in. If the spendthrift clause is defective under your state law, it becomes unenforceable and the creditors of your beneficiary can access the assets.
IRA Protection Trust
Assets left to beneficiaries under an IRA are subject to income taxes when withdrawn. One of the most important aspects of your IRA is the tax deferral. The longer the money stays in the IRA, the more the assets can grow compounded on a tax deferred basis. Non-spousal beneficiaries must begin taking distributions from the IRA and are given two options:
This decision is up to the beneficiary to make unless the beneficiary is a trust where you have already made the election for them. The IRS requires the trust to have designated beneficiaries to allow the election of stretch payments. If the IRA owner properly plans for his heirs to be a designated beneficiary, they will have the opportunity to use each of their own life expectancies to maximize distributions. The terms of the trust ensures and enforces that the stretch payments actually happen.
The IRA Protection Trust is an estate planning technique intended to coordinate the administration and distribution of IRA assets after death. There are two aspects of the trust. First, it allows each beneficiary to qualify as a designated beneficiary as required by the IRS. Second, it enforces your goals of requiring the beneficiaries to stretch distributions from the IRA preventing them from taking money out of the IRA earlier than required. Because the trust restricts distributions, it serves as a barrier from creditors, claimants, and court actions.
There are two ways you can set up IRA Protection Trusts: conduit and accumulation. The conduit trust form takes the minimum distribution from the IRA each year and passes it through to the beneficiary. The trust serves merely as a flow-through, or conduit, for paying out the annual distribution. The trustee is not given discretion over the distributions. A conduit trust requires the trustee to disperse the minimum distribution each year.
The accumulation trust retains the distributions inside a separate account owned by the trust to secure the funds from creditors or spendthrift beneficiaries. The trustee of this type of trust can use discretion when choosing whether to distribute trust funds to the beneficiary for reasons such as the health, education and maintenance of the beneficiary.
There is no one size fits all solution when planning your estate. Each situation is unique. Trusts can be an important part of your estate plan when leaving assets to beneficiaries is involved. However, they are often complex and time consuming to set up properly. I hope this newsletter series has given you some ideas to consider for you own estate plan. Be sure to work with an attorney that specializes in estate planning to make sure all your documents are properly drafted after you’ve decided the direction you want to take.