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Understanding Living Trusts
By Matt Unangst, 23 Jan 16:04
• Created during lifetime of settlors
• Most typical type is a family trust
• The trust cannot hold title to real property
• Many taxes can be avoided by putting assets in trust
• Property in trust can be homesteaded
• Most trusts allow settlers to borrow against the trust, but some lenders won’t lend against a trust
• Unwise to have someone else hold title for you “in trust”
A Living Trust, also called an Inter-vivos Trust, is a trust created during the lifetime of the person who establishes it and transfers property into it and usually ends when they die, transferring the property to the trust’s beneficiaries. The creators of the trust are called either Settlors or Trustors.
The most common type of trust is a Family Trust with the parents as Trustors and the children and the parents both as beneficiaries. These trusts often close out when the parents die, but can also be extended to include grandchildren or generations beyond. The majority of trusts end with the deaths of the Trustors.
Many estate planners recommend that their clients hold real property in living trusts. This is often meant to minimize or postpone death taxes, avoid the waste of time caused by probate, or to shield the property from unsecured creditors. Married couples can usually exempt many of their assets from taxation and possibly avoid taxes after the first of them dies.
When property is held in trust, it is not actually held by the trust, rather it is held by the Trustor on behalf of the trust. Most trust agreements allow a Trustee to borrow against the trust, but some lenders will not lend against a trust.
Property held in trust can be homesteaded if the trust agreement allows it.
Some people want to avoid being known as a title holder to a property and will therefore have someone else hold the property “in trust” for them. Not only are these arrangements sometimes illegal, they also allow the Trustee control over the property, even allowing them to borrow against it or convey it. Your title insurer cannot protect you against someone holding a property “in trust” for you, even if that person has violated your personal agreement with them.
Title companies can answer most questions about property held in trust, but you probably want to speak with a lawyer prior to taking any actions involving a trust.
KEYWORDS: living trust, property in trust, trust, title company, title holder, estate planning, estate planner, trustor, trustee, settlor, inter-vivos trust, family trust
SEE ALSO: Understanding Probate
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