TRUSTS AND
YOUR ESTATE
PLAN
Understanding Trusts Is Essential for Anyone
Beginning the Estate Planning Process Because
they So Often Play A Large Role In Any Plan
Larry Deason and Shawn Garner
Estate Planning and Elder Law Attorneys in Yuma Arizona
A trust is essentially a legal relationship between you, other people,
and some of your property. When you create a trust you create a
type of legal entity that can own property on your behalf.
If ou’ e lear ed a little a out the estate pla
i g pro ess, ou’ e pro a l heard
about trusts. But what are trusts? What do they do? How do they work? What role do
they have in your estate plan?
Understanding trusts is essential for anyone beginning the estate planning process
because they so often play a large role in any plan. Unfortunately, because most people
do ’t ha e
u h e perie e ith them, these tools can often seem mysterious. To take
the mystery out of trusts, and to get a better understanding of why they are so
important, here are some basic concepts you should understand about these vital
estate planning tools.
Relationships and People
A trust is essentially a legal relationship between you, other people, and some of your
property. When you create a trust you create a type of legal entity that can own
property on your behalf. The property you give to the trust is not technically yours in a
legal sense, even though in many situations you will still be able to use and manage it
just as you would if you were the individual owner.
The relationship you establish when you create a trust exists between several key
people. These are:
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The Settlor. A person who creates a trust is called a settlor, grantor, or trustor. In
order to create the trust you must be a capable adult and set your wishes down in
writing.
The Trustee. In the document the grantor creates that establishes the trust, the
grantor will select a person who will serve as the trustee. The trustee has the legal
obligation to manage all the property the trust owns. Trustees can be individuals
or organizations. In some situations, the settlor can serve as his or her own
trustee.
The Beneficiaries. The beneficiaries are the people or organizations who have the
legal right to use or benefit from the property the trust owns. The trustor can
choose any beneficiaries he or she likes, and is often a beneficiary as well.
Trust Agreements
The specific document that creates a trust is known as the trust agreement or,
sometimes, as the trust instrument. In addition to naming the important people
involved in the trust, the trust agreement must also contain other specific details.
The Purpose. Grantors must create a trust with a specific goal or purpose in mind.
Stating the goal in the trust agreement is important because the trustee has to
manage the trust in accordance with the principles established by the grantor.
The Type of Trust. There are many different varieties of trusts available. Simply
creating a document stating that you wish to create a trust is not enough. You
have to state the type of trust you want to establish. (We discuss trust types in
the next section.)
The Trust Rules. Depending on the type of trust you choose to create, you also
have to create certain rules or guidelines. Some of these rules will have to comply
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with different state or federal laws, while others are up to you as the grantor to
determine.
Trust Types
As we mentioned earlier, there are numerous types of trusts available. Each type of
trust will serve a specific purpose and give you different options. Different trust will also
convey certain benefits, while other trust offer different benefits.
In general, it’s useful to differe tiate et ee differe t t pes of trust
ide tif i g
when they take effect and whether the grantor is allowed to change their terms or rules.
When the trust takes effect. A trust you establish that takes effect immediately,
or otherwise while you are still alive, is known as a living trust. On the other hand,
a trust that only takes effect after you die is known as a testamentary trust.
Testamentary trusts are created through the terms you include in your last will
and testament, hence their name. Because your will does not take legal effect
until after you are dead, any trust you create through your will also does not take
effect until after you are dead.
When the grantor can change terms. If the grantor creates a trust that he or she
can change, this is known as a revocable trust. Grantors retain the ability to
modify (or revoke) a revocable trust at any time. On the other hand, a grantor can
choose to create a trust that, once it takes effect, cannot be changed. These are
known as irrevocable trusts. All testamentary trusts are irrevocable, and all
revocable trusts are living trusts, though there are also irrevocable living trusts.
Trust Management
The trustee manages the trust in much the same way that the CEO of a corporation
manages a business. Trustees have a duty to manage trust property responsibly, and to
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do what is in the best interests of the beneficiaries. Trustees cannot simply use their
position to, for example, take control of trust property and spend the money any way
they choose. Trustees are considered fiduciaries, meaning they have a heightened legal
obligation to the beneficiaries. Trustees who fail to adequately manage trust property
risk exposing themselves to civil, or even criminal, liability.
Trust Options and Selection
Creating a trust is often essential regardless of the kind of estate plan you want to
create. Even the most of basic estate
plans will typically use one or more
types of trusts because the devices
are so useful. Depending on the
complexity of your estate and what
you want to accomplish, you might
end up using several types of trusts.
The important thing to realize is that
e ause
ost people do ’t reall k o
hat a trust is a d hat optio s the ha e
a aila le to the , ou o ’t e a le to k o
hat our estate pla
eeds u til ou
speak to an expert. After discussing your situation and knowing what you want to
accomplish with your estate plan, your estate planning lawyer will be able to give you
advice on the type of trusts you need to create to protect your interests and make sure
your wishes are met.
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About the Authors
Larry Deason and his staff have been providing quality legal services for clients
since 1971. Their mission is to assist people who are concerned about protecting
their families from the devastating legal and financial impacts of disability, death,
and taxes.
Larry Deason
Because he believes in the importance of an informed public, Deason spends
considerable time educating consumers about Estate Planning issues. He writes a
monthly Estate Planning column in The Sun, and he regularly conducts seminars
on various Estate Planning topics.
Deason and his staff believe that in many instances Living Trusts offer clients a
proven and powerful tool for protecting their families from the expense and delay
of probate, as well as a strategy for eliminating or minimizing federal taxes.
Deason’s firm is staffed with paralegals and consultants who are experienced and
trained in a variety of Estate Planning areas. The aim of each member of the firm
is to help clients accomplish their Estate Planning goals while taking the mystery
out of the whole process. We take pride in knowing that our clients feel “peace of
mind” once the planning process is completed.
Shawn Garner
In 2008, Mr. Garner began practicing law in Yuma in the fields of commercial
litigation and bankruptcy. In 2011, Mr. Garner switched his field of practice to
exclusively estate planning because he found it more rewarding to help people
avoid the costs and stresses associated with litigation more than trying to resolve
disputes through litigation and court intervention
Deason Garner Law Firm
242 West 28th Street, Suite A
Yuma, AZ 85364
Phone: (928) 783-4575
www.DeasonGarnerLaw.com
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