Types of Trusts – Revocable Trusts, Irrevocable Trusts, & Living Trusts

Trusts, revocable and irrevocable trusts,  provide an effective estate and financial planning tool. The benefits rest in their ability to provide flexible asset management options while in some cases offering a way to reduce exposure to creditors and tax liability. Further trusts offer an estate-planning alternative to wills in which individuals can manage and alter their estate plan while still living. Further, they offer the potential for cost savings as estate assets held in trust do not need to be administered by a probate court, which ultimately reduces the cost and time needed to distribute estate assets.

Functionally, trusts involve three elements, a grantor (the person funding the trust), a trustee (the person or institution administering the trust) and the beneficiary (person(s) receiving assets from the trust). How the trust operates, such as how trust assets will be managed and the conditions under which assets will be distributed to beneficiaries is governed by the trust agreement. The trust agreement is normally established by the grantor to be carried out by the trustee.

Currently, there is a wide range of trusts available. The variety available to financial and estate planners reflects responses to many estate and financial planning problems. As such, the variety of legally recognized trusts available today can conceivably address a number of estate and financial planning problems.

Trusts can be classified into four categories:
1 – revocable trusts;
2 – irrevocable trusts;
3 – living trusts; and
4 – testamentary trusts.
A trust may have a combination of these characteristics. Whether a trust is revocable or funded during the life of the grantor will determine how it functions, the protection is offers from creditors and how trust assets are taxed.

Revocable and Irrevocable Trusts trust cannot be altered or terminated by the grantor after it has been created, whereas a revocable trust can be altered or terminated by the grantor after it has been created. Irrevocable trusts can be altered or terminated only under limited conditions and requires the consent of the trustee, the beneficiaries and in some cases court approval. The practical effect of a trust being irrevocable relates to whether trust assets are viewed as being owned by the trust or by the grantor. Generally, irrevocable trust assets are taxed as if they are not in the possession of the grantor. As such, the trust incurs tax liability, which can be less than if an individual tax liability. Conversely, the tax liability for assets held in a revocable trust is taxed to the grantor. The treatment of irrevocable trust assets as being separate from the grantor’s assets also applies to protection offered from creditors. The assets in an irrevocable trust will not be treated as attachable by a creditor, whereas a revocable trust can be attached to creditor claims.

Living and Testamentary Trusts
Trusts vary according to when they are funded. Living trusts are created while the grantor is still living. A living trust would involve a grantor placing assets in a trust, while living, to transfer to a beneficiary while the grantor is still alive or to be transferred for an extended period including after the grantor’s death. Commonly, living trusts are revocable so that the grantor can take an active role in managing trust assets, for example investing assets so that they increase in value or removing assets from the trust. A living trust is contrasted with a testamentary trust that is included in the terms of a will and takes effect when the grantor dies. For example, a testamentary trust may be contained in a will and structured to place assets in trust upon the death of the grantor. Often testamentary trusts are used to transfer assets to a minor before they reach adulthood and presumably are better equipped to manage their finances. Unlike a living trust, a testamentary trust will require administration by a probate court since it is included in a will. However, the operation of the trust itself will require probate involvement.

Beyond the broad categories of trusts discussed above, there are many trusts with specific purposes tailored to address particular estate and financial planning needs. The type of trust suitable to a particular situation will depend on the assets being placed in trust, tax liability considerations and long and short term planning goals.

EstateBee’s Testamentary Trusts and Living Trusts
EstateBee’s online estate planning software is a market leader, and has been for over 20 years. Our online will writing software includes a full range of UTMA custodianships and testamentary trusts – including standalone trusts for children and children’s pot trusts. The same features can be found in our online living trust software which also includes a full range of trusts and custodianships.

Our software is state specific and is bespoke to your circumstances, whether you are single, married, or in a registered  domestic partnership and whether you have children or not. It has been developed by experienced estate planning lawyers and is updated regularly.

Our software can help you make a last will or living trust that is bespoke to your needs and circumstances. If you need any assistance, our customer service team will be there to help you.

Durable Power of Attorney for Finance & Property, Planning for Incapacity

A Durable Power of Attorney for Finance & Property is a legal document by which you appoint and authorize another person (usually a trusted friend, family member, colleague or adviser) to act on your behalf in the event that you become incapacitated.

In order for a Power of Attorney to apply when you are incapacitated, it will need to be stated to be a durable Power of Attorney. Ordinary powers of attorney cease to have legal effect once you become incapacitated. A durable Power of Attorney remains valid or, in some cases, only commences if you become incapacitated.

A Durable Power of Attorney for Finance & Property come in two forms – a durable general Power of Attorney and a durable limited Power of Attorney.

Under a durable general Power of Attorney for finance & property, you can appoint an agent to whom you give authority to collect and disburse money on your behalf; operate your bank accounts; buy and sell property in your name; refurbish and rent out your property; and generally sign documents and deeds as your alter ego. It permits your agent to act as your authorized legal representative in relation to the whole cross-section of your legal and financial affairs, until such time as the authorization granted under the Power of Attorney is revoked or comes to an end.

You can of course limit the scope of your agent’s authority by creating a durable limited Power of Attorney for finance & property. This is similar to a durable general Power of Attorney except that, under the terms of this document, you can expressly limit the agent’s authority to carrying out certain functions such as, for example, the management of your business, selling a property or another specific task.

Most responsible individuals plan how their property will be divided amongst their loved ones following their death. However, all of these plans can seem like a waste of time and effort if the individual, through an accident or illness, finds themselves in a position where they cannot manage their own affair while they are still alive. The individual’s inability to manage his or her own assets could result in a substantial depletion of the value of these assets. This could, in turn, render meaningless the individual’s plans for the distribution of his or her assets on death.

The individual’s family could be left facing serious financial hardship due to their inability to access the individual’s assets while he or she is still alive. What if the individual’s signature is required to access the family savings? What if assets need to be sold to pay for his or her medical care…but because he or she cannot sign the relevant documents, the family cannot raise the funds.

You can avoid this situation entirely by simply granting a durable Power of Attorney to a close friend or family member. If the need arises, they can take charge of your affairs and ensure that same are managed in much the same way as you would have done in the circumstances.

How EstateBee Can Help You

If you would like to make a durable powers of attorney, EstateBee offers you a number of options including:

All of our documents have been prepared by experienced estate planning lawyers with decades of experience, are jargon free and easy to read.

The majority of our customers prefer to make their power of attorneys online using our Online Power of Attorney Software as the online option removes the need to ‘mess around’ with legal forms on a computer (which can be risky – if you accidentally delete a sentence or two, you could fundamentally alter the intent or meaning of your power of attorney document).

Our Online Power of Attorney Software has been in use for almost two decades and is part of our market leading estate planning software. If you have any queries about using it, please do reach out to our customer support team who will be happy to help you.

For more information on our power of attorney products, please contact our customer service team.

Advance Directives for Healthcare & Living Wills – Planning for Incapacity

Advance directives for healthcare are used to instruct others regarding the medical care that you would like to receive should you find yourself in a position where you cannot communicate your own wishes regarding the same.

There are two specific types of healthcare advance directives that should be considered as part of your estate plan, each with differing features. These are living wills and healthcare powers of attorney.

A living will is a legal document by which you can instruct healthcare providers with regard to your wishes about the use or non-use of certain life-prolonging medical procedures in the event that you become terminally ill or permanently unconscious and unable to communicate your wishes.

For many, the purpose of a living will is to document their wish that life-sustaining treatment, including artificially or technologically supplied nutrition and hydration, be withheld or withdrawn if they are unable to make medical decisions on their own behalf and are suffering from a terminal illness or are in a permanent state of unconsciousness from which they are unlikely to recover.

The manner in which a living will works is quite straightforward. In most states, two doctors must personally examine you and agree that medical procedures will only prolong the dying process. If both doctors agree that this is the case, then certain medical procedures may be withdrawn or withheld, depending on the contents of your living will. Of course, the withdrawal of these procedures will result in death. However, it should be noted that living wills can also be used to instruct attending physicians to use all possible means and treatments to keep you alive.

Other names sometimes found for living wills include ‘instructions’, ‘directive to physicians’, ‘declaration’, ‘advance directive’ and ‘advance medical directive’.

A living will is a fundamental part of estate planning and features in the vast majority of estate plans. For more information on living wills, read some of the other living will articles on this website.

How Can EstateBee Help You?

If you would like to read more in-depth into healthcare powers of attorney and living wills, or indeed make one of your own, check out our Healthcare Power of Attorney & Living Will Kit. It’s been prepared by lawyers with decades of estate planning experience, is easy to read and jargon free. It can walk you step-by-step through the process of making a combined living will and healthcare power of attorney.

For the tech enthusiasts, check our Online Power of Attorney Software and our Online Living Will Software. It’s been prepared in conjunction with lawyers, is state specific and has been a market leader for the past 20 years.

For more information on our living wills and power of attorney products, please contact our customer service team.

Preparing a Funeral Plan – What You Should Include in a Good Plan?

Planning a funeral involves a variety of different tasks ranging from selecting a funeral planner, choosing a casket, deciding on burial and cremation options to organizing gatherings after the funeral itself. A good funeral plan will cover all of these matters. In many cases, the best people to help you with preparing a funeral plan and organizing these tasks will be funeral service providers or funeral directors. They will have considerable experience in preparing a funeral plan, planning funeral ceremonies, preparing the deceased’s body for public viewing, selecting caskets, and almost every other aspect of the funeral process. They will be able to advise you of the options available to you and ultimately help you put your funeral plan in place.

In putting together a funeral plan you will need to consider matters such as:-

• whether you want to donate your body to science;
• whether you want to be buried or cremated;
• where you want your remains buried, scattered or kept;
• the type of ceremony that you will have and where it will be held;
• whether you will want visitations;
• whether you wish to be embalmed;
• whether there will be a procession to the cemetery;
• how your body will be transported;
• how your family will travel to and from services;
• the funeral products you wish to buy such as caskets, burial vaults and urns; and
• more.

But don’t just visit one funeral service provider for advice and assistance. Feel free to shop around. This way, not only will you probably get a better deal, but you will also get a better understanding of the different services provided by different service providers as well as the different options available to you. This will be invaluable in putting your funeral plan together.

How Can EstateBee Help You?

If you’re browsing to learn about preparing a funeral plan, feel free to have a look at some of the other funeral planning articles on this website.

Alternatively, if you would like to find all of the information you need in one place, then check out our  Funeral Planning Basics book.

Funeral Planning Basics is a comprehensive funeral planning book that will take you step-by-step through the entire process of planning and arranging your funeral. It will introduce you to issues such as organ donations, purchasing caskets, cremation, burial, funeral services and much more. You will learn about all of the key aspects of the funeral planning process, what your options are, new trends in funeral planning (including ‘green burials’ and sea burials) and much, much more.

If you have any queries about our funeral planning products or services, please feel free to contact our customer service team.

Making an Online Living Trust – What You Need to Consider

A number of companies are now offering online facilities that allow you to make online living trusts. These online living trusts are in many cases much more sophisticated and better than using the standard templates found in do-it-yourself legal kits. This is because, the online trust building software not only asks you questions relevant to your specific circumstances but also takes the hassle out of tailoring the document by preparing one that is custom made to suit you. So, for example, there is no need to do things like “delete the clauses that do not apply” or add extra gift clauses when the template contains insufficient clauses. Online living trust builders do all the work for you.

Online trusts take about 10 minutes on average to complete. This is of course assuming that you are already aware of what you need to know to complete the trust and have a schedule of assets to hand that you want to transfer to the living trust. In most cases, the living trust builder will ask you a series of questions and present you with a series of options to select in an interview styled process. When you have answered all the relevant questions and selected all of the relevant options the online living trust builder will create your living trust.

Once the online living trust is created, all you need to do is print it off and execute it. Of course, you will normally pay a small fee for the document. Also, in the same way as every other living trust you will need to ensure that the living trust is properly funded which means ensuring that the assets are properly transferred to the trust.

In choosing an online living trust provider, you should ensure that you select trust builder software that has been prepared by lawyers (many are not!) and that is being sold by a reputable company with estate planning experience. You should also look for online living trust software that includes advanced features like the inclusion of alternate beneficiaries (few pieces of online living trust making software do), UTMA custodianships and child trusts.

You can buy cheap online living trusts on many internet websites. However, before you make that purchase, you should check to see if these cheap online living trusts contain the options set out above. Otherwise, the cheap online living trust may end up costing your family a lot more that you bargained for!!

How Can EstateBee Help You?

EstateBee’s Online Living Trust Software allows you to make revocable living trusts online from the comfort and privacy of your own home. Without a doubt, it is one of the most sophisticated pieces of estate planning software on the market.

Our Online Living Trust Software prepares bespoke revocable living trust agreements for people who are single, married or in a registered domestic partnership, and caters for people who have children and those who don’t. It is 100% bespoke to your circumstances.

The software is also state specific. So, for example, when it comes to making property management provisions for minors, young adults who may have trouble managing their inheritance or even people with special needs who stand to inherit under your living trust, not only will you be given the option of creating sub-trusts for each of those beneficiaries, you will also be given the option of creating UTMA custodianships – if your state allows. In the later case, the software will let you know the options that apply in your state – the age at which the UTMA custodianship ends, the number of trustees you can appoint, and much more.

Everything is state specific and bespoke to your personal situation.

EstateBee’s Online Living Trust Software is, without doubt, a market leader – and has been so for over 20 years.

What is a Power of Attorney?

A Power of Attorney is a legal document by which you can appoint and authorize another person (usually a trusted friend, family member, colleague or adviser) to act on your behalf and to legally bind you in that respect. While most people fail to see the importance of having a Power of Attorney, there are many compelling reasons why they should be used.

Suppose, for example that:

  • you are going to be out of the country for an extended period, and need someone trustworthy to manage your business affairs while you’re away;
  • you wish to acquire property in another state, and you need to authorize a local to sign and lodge documents on your behalf;
  • you want someone to manage your real estate for you; or
  • you’re getting a little bit older and wish to appoint someone you know and trust to make healthcare decisions on your behalf should the day come when you are unable to do so yourself.

A Power of Attorney can be used to facilitate your needs in each of these scenarios.

The person giving the Power of Attorney is referred to as the ‘donor’, ‘grantor’ or ‘principal’, while the recipient is called the ‘agent’, ‘attorney-in-fact’ or just plain ‘attorney’ (which doesn’t mean they have to be a legal practitioner).

Need More Information? How EstateBee Can Help You…..

For more information on powers of attorney, please read the articles on this website or contact our customer support team who would be happy to answer any questions you have.

Alternatively, check out our book “Make Your Own Medical & Financial Powers of Attorney“. Make Your Own Medical & Financial Powers of Attorney provides you with detailed information on a variety of powers of attorney including durable powers of attorney for finance and property, healthcare powers of attorney and ordinary powers of attorney. It explains how powers of attorney work, what happens without them, how you should go about selecting your agent, how to revoke your power of attorney, the risks involved, problems to avoid, and much more. It also takes you step-by-step through the process of creating a variety of different powers of attorney.

All of EstateBee’s powers of attorney have been created by experienced estate planning lawyers. EstateBee has been a market leader in DIY estate planning for over 20 years.

For more information on our power of attorney products, please contact our customer service team.

Avoid Probate – Transfer Assets to Loved Ones Quickly Following Death

If you have a spouse, child or other person that is financially dependent on you, they may need immediate access to funds from your estate in the event of your death. As such, you will need to consider how you can transfer some or all of your assets to them in a manner that will avoid probate – so as to avoid having the assets ‘frozen’ during the probate process.

You can avoid probate in several ways.

Firstly, you can avail of some of the probate free transfer devices such as pay on death bank accounts, transfer on death securities or even life policies with designated beneficiaries. In each case, you can nominate a beneficiary for the proceeds of the account/policy and the financial institution holding the same will quickly arrange the transfer of the proceeds to the named beneficiary upon production of your death certificate. These methods provide a great source of readily available funds following your death and avoid probate.

Secondly, you could transfer your assets to a living trust. Assets held in a living trust will not become part of your probate estate because the assets are not held in your name at the time of your death. This keeps them outside of the private process and enables them to avoid probate and be quickly distributed to the beneficiaries of the trust following your death.

Thirdly, you can convert assets that you own solely into jointly owned assets. Where assets are jointly owned, it is possible to designate that a right of survivorship will apply to these assets. This means that when one of the joint owners dies, the asset will pass directly to the surviving joint owner – without the need for probate. Of course, the joint owner can be a friend or relative; and the assets can comprise of anything from real estate to cash in a bank account. Thus, in the same way as the other devices mentioned above, the surviving joint owner can quickly claim ownership of the asset following your death by simply producing a certified copy of your death certificate. This method presents another way to avoid probate of your assets.

How Can EstateBee Help You? 

For more information on how you can avoid probate, please review the other articles on our website or contact the EstateBee team.

Alternatively, check out our book entitled “Make Your Own Living Trust & Avoid Probate“. In it, our experienced estate planning team explores all of the most commonly used probate avoidance measures in depth, explains what works and what doesn’t and how to organise your estate in a way that maximises your probate avoidance measures while reducing the number of your assets that go through probate, and in turn the costs of probate. It also explains why allowing some assets go through probate could be absolutely essential for you and why most people should still make a last will and testament.

If I Don’t Make a Living Will, What Happens? Planning for Incapacity

If you don’t make a living will, state law will intervene to determine how decisions regarding your end of life medical treatment are made. In most instances, the responsibility for making these decisions will fall to your family who will invariably be guided by medical personnel and not necessarily your wishes.

Of course, because you have not stated what life sustaining medical treatments you want or don’t want in a living will, your family will have no real ‘road map’ to follow when making decisions for you.

In these circumstances, family members could easily come to an impasse in terms of the treatment you are to receive or not receive, as the case may be. This impasse may well escalate to a court battle to resolve the issue. Indeed, this is exactly what happened in the famous Terri Schiavo case which received nationally media attention some years ago.

All of these possible problems and disagreements could be avoided by stating your wishes clearly in a living will. A living will sets out the life sustaining treatments you want and don’t want, whether that’s nutrition and hydration, blood transfusions, surgery, organ transfers and so on. Better still, your attending medical teams are ordinarily legally obliged to follow the instructions you have set out in your living will.

By making these choices in advance, you reduce the likelihood of family disputes, as well as the possibility of receiving medical treatments you would not want to receive.

How Can We Help You? 

For more information on living wills, you can read some of the other articles on our website.

Alternatively, EstateBee offers a number of different ways of helping you make a living will. Our must popular option is our Online Living Will Software, which guides you step-by-step through the process of preparing your document. Help and explanations are available at every step of the process, and our customer service team will be on hand to answer any questions you have.

For those who prefer template fill-in-the-blank forms, we also offer a template Living Will Form which has been drafted by our estate planning lawyers to comply with the laws in each state. The form comes complete with clear instructions on how to correctly complete and execute your living will.

If, on the other hand, you would like to read into living wills a little more in-depth before making one, then our Healthcare Power of Attorney & Living Will Kit.  is probably for you. It contains all the information and ready-to-use lawyer prepared legal forms and documents necessary to create a combined Healthcare Power of Attorney and Living Will. It also contains all the forms necessary to revoke any document you make.

For more information on our products, please feel free to contact our customer service team.

How to Make a Power of Attorney…..without the need for a Lawyer…..

You don’t need a lawyer to make a Power of Attorney. If you carefully follow the steps below, you should find it quite easy to make your own document without having to call up a lawyer for advice, or even carry out extensive research.

Step 1: The first step is to decide on the type of Power of Attorney that you want to make. There are two options that you can select from – general and limited. A general Power of Attorney gives your agent full power over your legal, financial and property affairs. It allows your authorized agent to enter into agreements on your behalf, and in your name, and to bind you legally. The scope of your agent’s authority covers the entire cross section of your legal and financial affairs. Subject to a few exceptions, whatever you could do legally, your agent will have the same authority to do. A specific or limited Power of Attorney, on the other hand, gives your agent limited powers to deal with specific matters set out in your document. Those limitations can be wide or narrow. For example, you could give your agent limited authority to sell a piece of real estate for a specific price, to a specific person, on specific terms and on a specific date. By adding these limitations, you greatly reduce the scope of your agent’s authority.

Both general and limited Powers of Attorney can be stated to be ordinary (non-durable) or durable. An ordinary Power of Attorney is one that automatically comes to an end if you become incapacitated and unable to make decisions for yourself, or if you die. It can also come to an end on a specific date. A durable Power of Attorney, on the other hand, is not terminated if you become incapacitated and remains in effect. In fact, in many cases, it only commences when you become incapacitated.

You will need to decide what type of document you would like to make. Ordinary or limited, and durable or-non durable.

Step 2: The next step is to get your hands on a power of attorney template form to complete. There are several ways you can do this. You can buy a Power of Attorney form online, prepare a Power of Attorney online or buy a Power of Attorney kit. While you can purchase forms in many places, be sure to choose a reputable vendor with adequate estate planning expertise.

Step 3: The next step is to select the person you want to act as your agent. This should be someone that you trust implicitly as they will be able to act on your behalf and bind you legally. In most cases, people then to choose a family member or close friend.

Step 4: Set out in your Power of Attorney the scope of your agent’s authority to act on your behalf and any limitations that will apply to your agent’s powers.

Step 5: You should arrange to meet a notary and to sign the completed form in his or her presence. You should also have two people (other than the notary) attend with you so they can witness your signing of the document. The requirements for witnesses and notarization will vary from state to state.

While it is not usually necessary to have your document notarized, it is good practice.

How Can EstateBee Help You?

Our Online Power of Attorney Software allows you to make a make a power of attorney online. The software will guide you step-by-step through the entire process of creating a document that is customized to your individual circumstances.

If you prefer to read a little more about the subject before you make your document, then try out one of our legal kits or our book “Make Your Own Medical & Financial Powers of Attorney.” It will provide you with step-by-step instructions, detailed information and all the forms necessary to prepare a power of attorney and appoint agents to manage your affairs.

If you have any questions regarding our products or services, feel free to contact our customer service team.

What is a Revocable Living Trust and How Does it Avoid Probate?

A revocable living trust is a type of ‘inter vivos’ trust (a trust made between living people) used for estate planning purposes. Under a revocable living trust agreement, you as the creator of the revocable living trust, declare yourself trustee of the trust and then transfer some or all of your personal property to the trust. The legal ownership of the property passes from you personally to the trust. However, as trustee of the trust you maintain control over and use of the trust property.

As creator of the revocable living trust, you can, at any time, either revoke the living trust or call for the return of some or all of the property transferred to it. You can also add assets to the trust, change the terms of the trust and even make it irrevocable (incapable of change) at any time in the future.

After your death, the assets in the revocable living trust will pass to the beneficiaries that you have named in the living trust agreement in much the same way that they would under a last will and testament. Specifically, your revocable living trust agreement will nominate a person known as the “successor trustee” (which is a little like an executor or personal representative) who will have the responsibility of transferring ownership of the assets in the trust to the beneficiaries named in the trust document following your death. In most cases, the whole transfer process takes only a few weeks.

From an estate planning perspective, one of the most important features to note is that since the assets in the revocable living trust are legally owned by the trust, they will not form part of your probate estate at the time of your death. As such, there will be no need for any of these assets to go through the probate process; nor are any of those assets available to settle debts from your estate (other than taxes which might be due). This, in turn, allows for the speedy distribution of those assets to the beneficiaries named in the living trust agreement. Once all of the assets are transferred to the beneficiaries, the living trust ceases to exist.

Revocable living trusts are very easy to establish and manage and, apart from avoiding probate, there are many advantages to using living trusts as part of your overall estate plan. These reasons relate to the management of your assets during incapacity, privacy, tax and more.

How Can EstateBee Help You? 

For more information on revocable living trusts, check out some of the other articles on our website and our discussion forum.

Alternatively, if you would like some more in-depth information on living trusts, check out our Living Trust Kit and our book Make Your Own Living Trust and Avoid Probate. Each will guide you step-by-step through the matters you need to consider when making a revocable living trust. With detailed information, easy-to-follow instructions, helpful worksheets and all of the forms necessary, you will also be able to prepare a revocable living trust.

If you prefer to create your revocable living trust online, check out our online living trust software. It will guide you step-by-step through the entire process. Detailed information and explanations are contained at every step of the process.

If you have any questions regarding living trusts, feel free to contact our customer service team who would be happy to answer any questions you may have.

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