Here’s What You Should Know About a Trust & How to Set One Up

Posted On April 16, 2024

Without proper planning for the transfer of your assets before your death or incapacitation, you relinquish control over who inherits your estate, potentially causing your loved ones to bear the financial burden. Fortunately, there are several strategies to prevent this all-too-common scenario, and one vital component of a well-rounded estate plan is setting up a trust.

In this article, we discuss essential information about trusts and offer guidance on incorporating them into your estate planning. Don’t miss the opportunity to take control of your assets and secure your loved ones’ future – consult with a skilled Brooklyn trust planning lawyer for tailored advice on crafting a trust that suits your unique circumstances. Call the New York Legacy Lawyers today at (718) 713-8080 to schedule a consultation.

New York trust lawyer

A Quick Primer on Trusts

Trusts are a tremendous tool you can use in addition to your Last Will & Testament.  Fundamentally, a trust is an estate planning tool which helps to manage the distribution of your property by transferring your estate into a separate entity and then to your beneficiaries (which may include yourself) when certain pre-defined conditions have been met.

Reasons to Create a Trust

A Trust is set up to protect and manage a family’s assets for the benefit of both current and future generations. There are many reasons to create a trust some of which include

  • Creditor protection: Property which is managed by a trust is no longer owned by the settlor or the beneficiaries, so it cannot be claimed by future creditors. This gives the settlor an opportunity to venture into higher risks without risking the trust assets.
  • Relationship Property Claims Protection: Relationship property laws permit the partners of your children to have access to the property that you gifted them during your lifetime, in case their relationship comes to an end. Placing these properties in a Trust, instead of under your children’s names will ensure that your children continue to benefit without these assets being part of their personal property.
  • Protecting Family Members with Special Needs: A family trust is ideal if you want to protect children or family members with special needs or those who require medical care. You can make provisions in the trust to protect these people against other family members who may want to control the family assets for themselves in the event of your death.

There certainly are more reasons to establish a trust.  Connect with us to see if your individual situation can be or should be addressed via trust establishment.

Reason for creating a trust Benefits of creating a trust
Creditor protection Assets managed by the trust are protected from future creditors
Relationship Property Claims Protection Protects the assets from the partners of your children in the event of a relationship breakdown
Protecting Family Members with Special Needs Protects family members with special needs from other family members who may want to control the assets

Establishing a trust

The basics of creating a trust require the settlor, who is the property owner, to transfer legal ownership of the property to the trustee, who can be an individual or an institution (including the settlor). The trustee then manages the property for the benefit of the beneficiary.  A fiduciary relationship is created by the trust, running from the trustee to the beneficiary. Therefore, the trustee must work for the best interest of the recipient when managing the trust property.

In some cases, the settlor may act as the trustee and retain the ownership of property instead of transferring it, in which case, they must act in a fiduciary capacity. The settlor is also allowed to name themselves as one of the beneficiaries of a trust.

Who Sets Up Trusts

Trusts, which are legal entities designed for asset management and protection, require careful setup and administration. The individual responsible for setting up a trust is known as the grantor or settlor. This person takes the initial step to transfer their assets into the trust, establishing the terms and conditions under which the trust will operate.

The grantor plays a crucial role by defining the purpose of the trust, selecting beneficiaries, and outlining the management or distribution of assets within the trust. When establishing the trust, the grantor sets the legal framework governing its operations, including the appointment of a trustee.

Tasked with managing the trust according to the grantor’s instructions, the trustee manages assets, makes investment decisions, and ensures beneficiaries receive their distributions as outlined by the trust. This role demands diligence, integrity, and financial knowledge. The grantor can also initially serve as the trustee, retaining control over the trust’s assets and operations. However, it is common to appoint a successor trustee who will assume these duties if the grantor is unable to continue due to incapacity or death.

The involvement of an attorney in creating a trust is crucial for addressing legal requirements accurately and reflecting the grantor’s wishes in the trust documents. They can help draft the trust agreement to minimize uncertainty and prevent potential disputes between beneficiaries. By engaging an attorney, the grantor can have peace of mind that their trust is set up with professional oversight, providing a secure future for their beneficiaries in line with their wishes.

Can You Set Up A Trust Without An Attorney?

When individuals encounter the concept of a trust, they often imagine a complex and intimidating legal paperwork. However, a trust fundamentally represents an arrangement in which an individual, referred to as the grantor, entrusts another person with the authority to manage specific assets on behalf of someone else’s benefit. The complexity of a trust can vary depending on the specific circumstances involved.

While it is possible for individuals without legal experience to create a trust on their own, it may not always be the most practical choice. It is important to note that trusts can become intricate, and legal regulations may change over time. Consulting with a qualified attorney can assist individuals in navigating potential challenges and ensure that their trust achieves their goals.

There are multiple situations where seeking the guidance of an attorney is highly recommended. If your net worth is approaching the estate tax exemption threshold, engaging in estate tax planning can offer substantial advantages for the beneficiaries of your estate. Additionally, if you have a child with special needs, prefer a non-standard distribution method for your estate, or need assistance with financing the trust, it is recommended to work closely with an attorney to establish a trust.

Even for less complicated matters, working with an estate planning attorney can provide the assurance of a professionally crafted estate plan and be a valuable resource for addressing any questions you may have. At New York Legacy Lawyers, our Brooklyn trust planning lawyers have the experience to help individuals and families establish trusts that meet their unique needs and goals. We can guide you through the intricacies of trust creation, ensuring that your assets are protected and your wishes are carried out seamlessly. Contact us today to schedule a consultation and take the first step towards peace of mind and comprehensive trust planning assistance.

How Long Can a Trust Remain Open After Death

A trust can remain open for varying durations after the death of the grantor, depending on the trust’s purpose, type, and the beneficiaries involved. The time frame for a trust to remain open can range from a year to several decades, or even for the lifetime of a beneficiary.

Trusts often stay open for extended periods when beneficiaries are minors. In such cases, the trustee may be tasked with distributing funds carefully and periodically, ensuring the beneficiary receives the money and property when they reach adulthood.

Certain trusts, such as qualified perpetual trusts or dynasty trusts, are designed to continue beyond a year and can last for several decades. These trusts are often established to preserve family wealth across multiple generations.

Special needs trusts cater to beneficiaries with disabilities, providing financial support throughout their lives, far longer than the 21-year rule applied to some trusts. These trusts can remain open for the beneficiary’s lifetime or until funds are depleted. 

Trusts can end sooner than the time frames mentioned above, often dissolving shortly after the grantor’s death. Once the assets and property within the trust have been distributed to the beneficiaries, the trust is terminated after signing a trust dissolution form.

In some cases, it is in the beneficiaries’ best interest for an irrevocable trust to end relatively quickly, such as within a year. This can avoid annual accountings and trustee fees that may reduce the trust’s assets. Additionally, a trust that remains open for too long may create opportunities for disputes among beneficiaries, potentially leading to legal action against the trustee.

Next Steps

Trusts are a great way to safeguard your estate for the benefit of your loved ones.  However, there are several more parts of a fully developed estate plan.  If you’re serious about getting your assets and estate in order, including setting up a trust, then you should speak to an estate lawyer.

We provide assistance with estate plans, including establishing trusts, for clients in Brooklyn, NY.  Please contact us today!