Over the past several columns, we have talked about various aspects of a trust, how it differs from a will and how a trust could fit into an estate plan. So, hopefully, you are starting to have enough information to ask yourself, "Do I or we need a trust?" In this column, we explore some of the risks to an estate when no trust is involved.
An estate plan is not effective if your assets do not end up with the people you want under the circumstances you want. A will can ensure your assets go to the people you want to receive them, but a typical will does not really anticipate the circumstances under which those assets are transferred; instead, the personal representative's role is to make certain the assets are distributed immediately, mostly without regard to the circumstances.
By contrast, a trust can help ensure those assets are distributed as you want and when you want. A well-drafted trust can protect you, your estate and the beneficiaries of the trust from unintended results.
For example, what if your child is facing bankruptcy at the time of your passing? Will your assets be able to help your child get back on his/her feet, or will they be used to pay your child's creditors?
As it relates to your money, would you like some control in that decision, even if you have already passed? A properly drafted trust can provide exactly this type of protection.
We cannot know with certainty all the challenges which will interfere with our estate plans. In fact, those challenges are likely to be different for each of us. However, by understanding how a trust can provide protection (and how it cannot), you can decide if those protections will be beneficial in your circumstances.
Best of all, you will not need to rely on someone else to tell you if you should have a trust. The following are just a few examples how a trust can help:
■ If your spouse has predeceased you, and you become incapacitated from a stroke, a fall, dementia or other chronic illness, a trust can be used to ensure that your assets will still be used to take care of you.
■ Seniors who have lost a spouse can sometimes be vulnerable to scams and, in some cases, that risk can be extremely serious. A trust can provide a layer of protection against that type of vulnerability;
■ And, as referenced above, if your children struggle with spending and are often fighting battles with creditors, or if they have significant marital problems or wrestle with addictions, a trust can protect your estate from unintended consequences. In some scenarios, your family can actually pose a significant risk to your estate, even if they don't intend to. I
n fact, those scenarios are common enough that, in the coming weeks, we will explain how your family can jeopardize your ability to pass on the estate as you desire.
In many cases, a carefully drafted trust can help you maintain necessary control of your estate.
In other cases, control may not be necessary and a different strategy may be more beneficial. It is important that you have the opportunity to learn what strategies are available, and decide for yourself what steps to take.
Brad Wright's business and estate planning practice includes transactional and litigation matters with a special focus on business succession and estate planning. His brother, Steve, has a similar law practice in Idaho Falls, Idaho, and together they assist businesses of all sizes and types with a wide variety of legal issues. Email firstname.lastname@example.org or email@example.com if you have questions or topics you'd like to see addressed in future columns.