Using Trusts To Prevent Elder Financial Abuse
If you are retirement age or nearing it, you may be concerned about protecting your assets in the future so that you won't be destitute later, especially if your health declines. You may also worry about relatives, friends, or caregivers taking advantage of you (and your spouse if you have one). There are several ways to manage your money and property that can help, and making a trust is could be a useful tool to protect what's yours, especially if you have significant assets:
Living Trust Basics
A trust can cover several kinds of assets including money, property, and investments. This arrangement involves three parties and they are:
- The grantor (person who sets up the trust).
- The trustee ( the person who oversees the assets).
- The beneficiary (the person who benefits from the trust).
The trustee should be chosen with great care since this person will manage the assets. This person can be an attorney, accountant, relative or friend. Spouses can also be trustees and you can make up several trusts under a single trust instrument that benefit each of you. You could also arrange it so that the surviving spouse is the beneficiary when you die. The remaining assets at the time of their death could pass on to your children or whoever you designate.
A living trust is one that is used to manage assets while you are living, as opposed to a testamentary trust that becomes valid at your death. When creating a living trust, you may want to establish that you will be working closely with the trustee to manage the assets so that you don't relinquish decision making ability, or a trust can be set up to make you the grantor, trustee, and the beneficiary.
Revocable Vs. Irrevocable Trusts
There are two types of trusts that have certain benefits and drawbacks, so you might want to create two of them or select one over the other.
A revocable trust is one that you can legally dismantle at any time. You retain more control over it, but if you have significant medical expenses and need to use state sponsored medical resources, you may have to use the proceeds from your trust first, or reimburse the state with your assets. Also, this type of trust can be set up to turn into a irrevocable trust if you become disabled or die.
Once you set up irrevocable trust, it can't be undone. It could be set up to provide regular income for you as a beneficiary but to protect your assets (including money, home, or other assets). Should you anticipate needing help from Medicaid, you would need to set up a special trust and you or your spouse would not be able to be the trustees of the trust. To plan for this contingency, you may need to have set it up well in advance -- at least 60 months (five years) before applying for any assistance, in certain states.
Whoever you designate as trustee should be someone who is honest, ethical, and has shown good judgment in managing money/ assets well in the past. You may want it to be a friend or relative who would volunteer to manage your trust for free, or you may use a bank, lawyer, or other financial professional to do it.
Other things you should know about an irrevocable trust are:
- That your assets may be considered no longer part of your estate.
- Your trustee would need to make sure the income and capital gains taxes were paid on the assets in the trust, or you could pay them as grantor.
- When you die, your assets in the trust won't be subject to estate taxes or probate.
For legal advice on protecting your assets and setting up a trust, you will need to consult an estate planning attorney. To learn more, contact a company like Aaron Law Offices PLLC with any questions or concerns you have.