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FAQ: Trusts

Marks Elder Law Michael H. Marks, Esq.

Michael H. Marks

Linda Law Carroll


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Frequently Asked Questions

1. What is a trust?
A trust is an arrangement in which you choose someone responsible and reliable to be in charge of money or property for someone else.
2. Are all trusts the same? How are trusts used?
Trusts are used in a wide variety of ways to accomplish family, personal, business and tax related goals.
3. Why should I use a trust? What are the purposes?
Trusts are usually used for these purposes:
  • To say who will benefit from you in a specific situation
  • to provide for someone in a safe and secure manner
  • to specify who will be in charge of handling money or property for someone
  • to specify who will be in charge after your first choice
  • to save taxes, through the use of specific provisions
  • to save administrative costs, such as probate
  • to provide for someone without making them ineligible for public benefits based on need
4. Who can create a trust?
Any adult can create a trust. The creator of a trust is also called the Settler or Grantor.
5. What is a Trustee?
A Trustee is a person, persons or organization chosen by the creator of a trust to be in charge of the trusts. You would choose someone in whom you have confidence to do the job -- someone that you trust.
6. What are the duties of a Trustee?
  • To receive and safeguard the money or property of the trust
  • To use or spend the resources of the trust as directed by the trust terms
  • To follow the instructions contained in the trust, generally
  • To use his or her good judgment to fill in the gaps in the instructions
  • To carry out the purposes intended by the trust creator, generally
  • o use his or her people skills to successfully deal with the individuals and other participants in the trust arrangement
7. What (or Who) is a trust beneficiary?
A beneficiary is someone who receives benefits from the trust, such as money, property, services, etc. Beneficiary may typically include your spouse, children, other family, or a charity.
8. How is a Trust like a triangle?
Every trust is a three way transaction. The first participant is the creator of the trust. The second is the Trustee or Trustees, and the third participant in the "triangle" is the beneficiary or beneficiaries.
9. Who can be a Trustee?
An adult individual, some banks and trust companies can serve as a Trustee.
10. Can I be the Trustee of my own trust that I create?
Yes you can create a trust and also act as your own Trustee, if that trust is created during your lifetime, and so long as you are able to act.
11. Who should I choose and appoint as Trustee?
Many people of middle-class background choose and appoint trusted family members such as spouse, adult child, sibling, etc. as Trustee. Choosing a trust company or bank is more likely when there are larger sums of money involved, or more complex trusts.
12. How do I create a trust?
A Trust is created by signing a trust Agreement, and taking steps to carry out the agreement, or by signing a Will that contains provisions to create a trust.
13. When does a trust in a Will begin to exist?
A trust to be created under the terms of a Last Will and Testament only comes into existence when the Will comes into effect -- that is when the person has died.>
14. What Is a "Testamentary Trust?".
A testamentary trust is a trust created under the terms and provisions of a Last Will and Testament, for use after the trust creator has died, rather than a trust formed during the lifetime of the trust creator.<
15. Can I create a trust that doesn't have any money or property in it yet?".
Yes, an "unfunded" trust can be created, and can stand by, ready to receive assets.
16. What is a "Living Trust?"
A. Living Trust" is a trust that you create during your lifetime, rather than under your Last Will and Testament for after you have died. A living trust is also called a "Lifetime Trust" or an "Inter Vivos Trust.".
17.What are the purposes of a Living Trust?
A Living Trust is used to avoid the extra legal work and costs of the probate process after you have died. Also, during your lifetime, it can help to organize and contain your property conveniently, and sometimes help to avoid a court-ordered Guardianship over the property of the incapacitated adult or minor child beneficiary.
18. Does a Living Trust save taxes?
Using a Living Trust DOES NOT SAVE TAXES just by itself. However, it can serve as a platform or foundation for additional provisions that are specifically designed to save taxes, or to accomplish other goals.
19. How are trust provisions used to provide for children & young beneficiaries?
Trust arrangements for children can specify who will benefit as beneficiaries, why the trust is created -- that is, its purposes, and how and when trust resources should be spent, et cetera. Trusts for children and young beneficiaries are usually created to provide for them in a more safe, certain and secure manner than if there was no trust.
20. What happens to a childs inheritance if no trust is created?
In PA, an inheritance left to a minor child without trust provisions must usually go into a court supervised, low-return bank guardianship account, that cannot be touched until the child turns age 18, except in extraordinary circumstances.
21. What is a special-needs trust?
A special-needs trust in the broad sense is any trust created with special provisions for a beneficiary with a handicap or disability, or who may require long-term care, who may depend on government benefits based on need, or be subject to other limiting circumstances.>
22. What is a "Credit Shelter Trust?
A. "Credit Shelter Trust" is a kind of trust arrangement used to limit or avoid Federal Estate Tax liability for someone who has a good bit of money. Historically, Federal Estate Tax applies only to the wealthiest few percent of all estates. This type of trust is also known as an "A/B Trust" or a "Bypass Trust," because it usually involves creating two trusts, an "A" trust and a "B" trust, to try to bypass the tax collector
23. Can I undo a trust?
Many trusts are revocable, and can be changed or even revoked completely by the trust's creator. In estate planning, the flexibility of a revocable trust is preferred. However, some planning goals are best accomplished through the use of an Irrevocable Trust, to create an arrangement that can't be undone - usually to permanently and completely take away the ownership and control of the trust resource from the prior individual owner, for tax or related purposes.
24.Who should I see to help me make a trust?
Always consult an estate planning attorney for help in creating a trust, or other estate plans such as a Will, Power of Attorney, deeds, family care agreements, probate estate administration, inheritance or estate tax, et cetera. Be careful to avoid any salesman from a trust mill, a marketing company that sells Living Trust kits or services to almost anyone without regard to whether it is truly right for you.
25.What does it cost to make a trust?
In dealing with any estate planning attorney (or other professional), never hesitate to ask about fees and costs, what is included, what will be extra, et cetera. Sometimes, you cant afford NOT to do the right kind of estate planning! Paying unnecessary, avoidable expenses and taxes that can result from a lack of planning may be far worse than the cost of proper advice and assistance. You may easily save many times the amount of the expense involved. Finally, dont forget the priceless value of peace of mind.