What Is a Family Trust?

by Neal Frankle, CFP ®

Even if you have one, you may not know what a family trust is.  Because it might be the cornerstone of your family’s financial security, it makes sense to take a minute to explore.

A family trust is also known as a revocable living trust. The family or living trust is a simple yet extremely powerful too. One of the most important benefits is that it can help you avoid probate (if set up correctly).  But it does much more than just that.

First, it dictates what happens to your money whenwhat is a family trust you aren’t around or unable to do so yourself for health reasons. If your assets are owned by your trust, the trust will have everything lined up.

When you set up the trust, you name someone to take over in case you are dead or disabled. This is the trustee. Once one of those things happens, the person you named steps in. Of course she can’t do anything she wants with your money. She has to do what you spell out in the trust. If she doesn’t, she’ll be a target for civil and possibly criminal prosecution. Just the same, if you set up a trust, make sure you name a successor trustee who is responsible, trustworthy and reasonably smart.

Once you set up your trust, you transfer assets into your trust. This is really easy to do. For financial assets like bank accounts and brokerage accounts, you just fill out a form that your bank and brokerage company gives you. Once you sign on the dotted line, your assets are retitled and thereafter held in the trust. You can also change the trustee and the beneficiary whenever you like. You do not lose any control over the assets. (That’s not the case with an irrevocable life insurance trust.)

What’s important to realize is that the assets aren’t in the trust until you re-title them. Many people make the mistake of thinking that once they set up their trust, and list them in the trust, they are in the trust.  Wrong. Just listing them in the trust doesn’t have any impact.  It’s a huge and potentially expensive mistake. You have to re-title everything if you want it in the trust.

For real estate, your lawyer will usually take care of retitling the assets. This is also a simple and inexpensive process. Nothing to worry about here.

Why do people set up family trusts?

Because they want to control what happens to their money once they die or become disabled. Once you die or become incapacitated, your trustee takes over using her power of attorney that is created through your trust. You don’t have to worry.

But if you have your money in your name alone and you don’t have a trust, you’ll be in a world of hurt if you die or become disabled. That’s because it will be difficult for anyone to access your money in order to care for you. In that case, they’ll have to go through the court system, which is expensive and time-consuming.

If you keep your assets in the name of both yourself and someone else – joint tenants or tenants in common – there are other problems. First, the money is at least partially theirs. That means they have access to it, they can spend it any way they want and/or they can be sued and their creditors can seize the assets.

A family trust basically makes sure your assets are available for your benefit. And if you die, the family trust insures that the money will be divided as you want it to be divided. A family trust does many other things too. It usually sets up health powers of attorney, which appoint someone to make medical decisions for you in case you can’t.

I’m not an attorney and I can’t provide legal advice. Also, laws are different depending on what state you live in. That’s why you should absolutely get professional legal advice before you proceed.

But it’s nice to know what a trust can do. If nothing else, by understanding the power of a family trust you can ask your attorney the powerful questions you need answers for before you make any decisions.

Have you set up a family trust? Why or why not?

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{ 5 comments… read them below or add one }

Bob Heghmann December 7, 2014 at 6:10 AM

If a party has his real estate holdings in a family trust can he shield the property from attachment and execution for a personal liability judgment.

Reply

rs allaire April 10, 2013 at 6:34 PM

When the person with the trust is deceased, do the beneficiaries have to pay estate tax or income tax on the inheritance like with a will?

Reply

Neal Frankle April 11, 2013 at 1:37 PM

Not really. The trustee is responsible to make sure all taxes have been paid prior to distributing assets to beneficiaries.

Reply

Jessica07 May 25, 2011 at 10:33 AM

Attorney or not, you did a wonderful job of explaining a family trust here. It was highly digestable and very usable. :)

Reply

Neal Frankle May 26, 2011 at 7:48 AM

Thanks! Coming from you…that’s a huge compliment!

Reply

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