Trust Basics

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Estate planning starts with planning for your own needs first. Then planning for
the needs of others. In this way, you can effectively make a difference. You help
others best when you are on solid personal footing. There are many different considerations when drafting an estate plan. It is important to consider how money and other assets will be passed should you become incapacitated or pass away. People don't like thinking about their own mortality, but when they don't, they often leave a big job for their loved ones to unravel.

A trust, is a legal document that states who you want to manage and distribute your property by, and to, if you're unable to do so. It also states who receives your property when you pass away. Once a trust is completed and signed, your next step is to transfer ownership of your assets to the trust, which is called funding the trust.

With a revocable trust, you remain in complete control of your property while alive, or capable of managing it. When you pass away, or become incapacitated, property in the trust can be managed and distributed by a successor trustee, that you appoint in advance, without going through the public process of a probate proceeding in court.

Trusts require naming certain parties that form, administer, protect, and benefit from trusts. Depending on the type of trust, all can be different people or entities, can all be the same, or a mix.

A grantor, or settlor, is the one who creates or settles a trust. A grantor who retains control of a trust can also be the trustee of a trust. This is typically the case in revocable living trusts (RLT), which are the most common type of trusts used in estate planning.

A trustee is one who holds legal title to trust property, holding in trust for the benefit of another. A trustee holds a fiduciary duty to the beneficiaries of the trust.

A beneficiary is one who benefits from a trust and/or receives the assets of a trust upon its dissolution.

A trust protector's role is usually to monitor, oversee or control the administration of a trust by the trustees. It is common for a grantor to choose to provide for a protector where a third party, or institutional trust company is appointed as trustee. 

A Revocable Living Trust is the most commonly used type of trust in estate planning. It is created and used during the grantor's lifetime, and allows the grantor reserves the right to terminate the trust and recover the trust property, and any income from the property. Compare with an irrevocable trust, in which the grantor cannot recover the property or income.

Setting up a trust is a two-step process. First the grantor creates a trust agreement, which is a legal document that designates the grantor, the trustee, and the beneficiaries, and outlines how the trust assets are to be managed and distributed. Part of this step is deciding who to name as beneficiaries, how the trust income and assets are distributed to them, and the naming of a trustee (or trustees).

The second step is actually funding the trust. The trust is useless unless you complete this step, and you would be surprised that many people with good intentions never get around to completing this step, and a probate proceeding ensues.

The grantor must transfer assets to the trust. How this is done depends upon the nature of the property:

• Real estate. To transfer real estate, the grantor executes a deed that transfers the title to the real property to the trust.
• Personal property with a title document. Some assets, such as cars, boats, RVs, airplanes, and mobile homes have some type of title document, which must be transferred to the trust. This can also be done with some types of brokerage accounts. An alternative may be to transfer the assets to the trust upon your death (TOD).
• Firearms and gun related property can be placed in a separate gun trust. A firearm or gun trust is designed to allow property to pass only to those qualified to own such property, and can help those managing your estate from accidentally committing a felony.
• Other personal property. Other property without a title document can be transferred by simply adding a  broad or specific description of the property to the trust document (such as "all of my household goods," or "my coin collection").

A fiduciary duty is that of good faith, trust, confidence, and candor, and the exercise of a high standard of care in managing another's money or property. A person or entity managing a trust is held to this high standard.