An update has been made to the NY Estate Tax. To read our update, please click here.
This conversation comes up a lot with our estate planning clients: “So, you’re leaving your entire estate equally to your three kids,” we say to our client. “Do you want to leave it outright or would you consider putting it in a trust for them?”
The two most common responses:
- “No, my kids are all OK. They can manage money and would be insulted if their inheritance was left in trust.”
- “No. If they can’t manage their inheritance then I can’t help them. I don’t want to try to control things after I’m gone.”
Then, we explain that creating a trust is actually a good thing for the kids but it’s usually hard to convince clients. So let’s try it here, and then we can just hand them this article.
Why consider a trust for your child’s inheritance? It may be a real benefit to them, protecting their inheritance from their creditors, spouses, even estate taxes. Let’s look at each of those concepts briefly:
One common concern we hear: “we love and trust our daughter, but though we like her husband we wouldn’t want him to inherit our assets if something happens to our daughter.” By creating a trust for your child’s inheritance, you make it easier to keep the property separate from spouses and more likely to pass to your grandchildren on your child’s death. Sadly, divorce is very common: you can help keep the inheritance from being considered as part of the property to be divided if your daughter does divorce.
Let’s consider creditors. “Our son is a doctor,” you say, “and he has plenty of money.” Ah, but professionals are vulnerable to future malpractice lawsuits, and anyone can have even a substantial estate drained by an auto accident or medical crisis. Creating a trust for your son can help protect the inheritance from lawsuits, creditors, and bankruptcy.
How about taxes? If your daughter is a successful professional, she might well have a taxable estate on her death. That could be true even though she is not particularly close to that figure today. If estate taxes do kick in, they start at a very high 40% on the federal level. New York currently has an estate tax on estates over $1 million. If you leave your daughter’s inheritance in trust, you can fairly easily arrange to keep it out of her “estate” for tax purposes.
So there are good reasons to leave an inheritance in trust, even though all your children are responsible and your estate is modest. But aren’t there some serious downsides? Doesn’t it mean a lot of additional costs and imposition of a bunch of difficult rules? Not really.
Depending on your family circumstances, you might even name your son trustee of his own trust. Or make your son trustee of the trust for your daughter, and make her trustee of his trust. Or make your daughter (you know, the one with her CPA who works for the bank) trustee for all the kids’ trusts. In other words, creating a trust does not mean you have to incur professional trustee fees though it might actually make sense to name a non-family trustee. We can talk about those options.
The trusts for your children will have to file tax returns each year. That will in fact mean a small additional cost. But the total amount of income tax paid need not increase. It should be fairly easy to assure that each trust’s income is taxed to its beneficiary, rather than paying taxes at the (often much higher) trust rates. We can talk about those issues, as well.
What about your son’s access to the money? Do you think he might want to use his inheritance to pay off his mortgage, or to allow him to put more away for retirement, or to send your grand kids to college? You can give him the power to demand money from the trust, or give the trustee direction to follow those kinds of requests. Let’s talk about how much control you want to give each of your children over the trust while they are alive. And on their death, you can even give your children the power to name which of their children (or spouses, or charities, or whomever you want to permit) will receive the remaining trust’s assets.
Cost? Setting up a trust for each of your children will likely increase the cost of your estate planning but by a pretty small number, in most cases. These principles apply even (perhaps especially) if you are leaving your estate to grandchildren, nieces and nephews, or anyone other than your children.
As you can see, there are many benefits of using a trust in your estate planning. Keep in mind, however, that one size does not fit all and it is important to have your documents tailored to meet your specific needs.
An update has been made to the NY Estate Tax. To read our update, please click here.
Learn more about elder law and estate planning by visiting www.elderlawnewyork.com
One reason to disclaim a gift is when the asset is actually undesirable, for instance a piece of real estate with a low potential sale value but high property taxes. Other gifts may come with strings attached, such as a requirement to get married or to take care of the deceased’s pet.
