We encourage all of our clients to create a Living Trust so their families can avoid Probate. Unfortunately, there’s one critical step that sometimes gets left out of this equation and leaves families vulnerable to Probate. Simply having a Trust is not enough; Living Trusts need to be funded–your assets need to be moved into the Trust. Without this action, your family will likely be facing Probate. There are five steps to funding your Living Trust.
A Trust has five asset categories that can be funded:
Bank and brokerage accounts
Life insurance policies
Tangible personal assets
1. Real property—property that is fixed in place
Real property is a building or a piece of land, designated by a Deed. When a Trust is formed, the owner listed on the Deed must change the name from the name of the person to the name of the Trust. If James Smith owns a house, and the house is in his name, he must transfer the Deed into the Trust, and the “Living Trust of Jonathan Williams” becomes the new owner. This must then be registered with the county for the Trust to be funded. California Document Preparers prepares Trust Transfer Deeds for our clients who are funding their Trusts.
2. Bank and brokerage accounts
Creating multiparty bank accounts can seem like a convenient solution for those caring for ailing family members, but it can create family conflict. If that ailing family member dies, all of the money in that account defaults to the person whose name was also on the account. If, for example, there are other siblings who expected to inherit some of that money, it can result in family discord.
In most cases, you will want the funds to go to multiple persons or organizations. Putting the accounts in the name of the Trust will ensure that funds can be transferred easily to all parties specified by the documents of your Trust. For example, if you want your Procter & Gamble stocks to be divided equally among your three children, you will need to put them in the name of the Trust. Each bank and brokerage has a procedure for this and will be able to assist with transferring the account name to that of the Trust.
3. Life insurance
While you can state in your Trust that your life insurance policy will go to your oldest daughter Joan, it’s important to know that the beneficiary noted on the actual policy is the beneficiary of record—not the person named in the Trust. Joan will not inherit that policy if she’s not named on the policy. If divorce or death means a change to your beneficiary designation, it’s imperative that you make this change to the life insurance policy itself—not your Living Trust.
4. Retirement accounts
Retirement accounts, like life insurance policies, specify a designated beneficiary. For married couples, this is typically one’s spouse. Where retirement accounts can get problematic is in naming their alternate beneficiary. A Trust is often a very valid choice for this secondary designation. Having one’s retirement account go to the Trust, to be distributed according to Trust specifications, can be a safe way to avoid Probate and ensure that your assets are distributed according to your wishes.
5. Tangible personal assets
Tangible assets that need to be included in your Trust include valuable jewelry, artwork, furniture, cars, etc. These items can be placed in a Trust through a Deed of gift or a bill of sale. The Deed of gift or bill of sale is necessary to “fund” the Trust with these items. Items that are high in value will have to go through Probate if not properly placed in the Trust.
One more thing: Identifying the distribution of sentimental items
If there are items that have nominal monetary value but significant sentimental value, these should be identified in a Trust along with their respective recipients. When Robin Williams died and left much of his estate to his second wife, his children sued to get the memorabilia that they believed were rightfully theirs. The more detail you provide, the more seamless the process of settling your estate will be for your family.