Key Takeaway:

  • Trusts allow you to control how your assets are managed and distributed, even after death.

  • Choosing the right type of trust is crucial for achieving your estate planning goals.

  • Properly funding the trust is essential for its effectiveness in estate planning.

  • Selecting a reliable trustee is key to ensuring the trust's terms are followed.

  • Trusts can help avoid probate, offering a quicker and more private asset transfer.

 

When it comes to estate planning, creating a trust fund is one of the most effective ways to manage your assets. From minimizing taxes, avoiding probate, or protecting your assets the legal way, learning how to set up a trust can help you secure your financial future. 
 

What is a Trust?

A trust fund or a trust account is a legal arrangement with which you can ensure that your assets are going to specific parties. The person who creates the trust is known as the grantor or settlor. They authorize another party, known as the trustee, to hold and manage assets on behalf of the party that receives some or all of the assets (known as the beneficiary)

When you own significant properties or assets, you might face legal complications in terms of tax liabilities and distributing the assets amongst your kin. In such a situation, creating a trust fund can help you manage your assets efficiently. 

There are many different types of trusts you can create, depending on your goal and your situation. Some of the most common types of trust accounts are as given below:

  • Revocable Trust: This type of trust can be revoked or modified by the grantor during their lifetime. It provides flexibility and control over your assets but does not offer protection from creditors.

  • Irrevocable Trust: Once established, this type of trust cannot be easily modified or revoked. This type of trust removes the assets from the grantor’s taxable estate, and so it offers greater asset protection and tax benefits.

  • Living Trust: This is created during the grantor's lifetime. It allows for the management and distribution of assets before and after death. It can be either revocable or irrevocable.

  • Testamentary Trust: This type of trust is created through a will and will only take effect after the grantor's death. It's one of the most common tools used for managing complex inheritance situations. In many cases, it is used to provide for children in the event of a parent’s death.

As you can see, there are many different types of trusts that you can set up for your family to make estate planning easier for you. Most importantly, by setting up a trust, you get more control over how your assets are used and distributed, even in the event of your death.

 

Key Steps to Setting Up a Trust

If you want to set up a trust, you will need to take several factors into consideration before you can proceed. Below is a step-by-step guide to help you through the process:

Step 1: Determine the Type of Trust Needed

The first thing you need to do is decide what type of trust you want to set up. To do this, you need to consider factors such as your financial goals, the level of control you wish to have over asset management, and whether or not you want to minimize your taxes to the fullest.

Step 2: Decide on the Assets to Include

Once you have decided what type of trust you want to create, you need to identify the assets you want to place in the trust. Your assets can be real estate, investments, bank accounts, or any other personal property. Make sure you consider the value and liquidity of these assets when making your decision, as they will have financial and tax implications.

Step 3: Select a Trustee

Choosing the right trustee is one of the most important decisions you have to make when setting up a trust. The person or entity you assign as the trustee will be responsible for managing all the assets in the trust. They will also be responsible for ensuring the assets are distributed the way you intended them to be. 

In many cases, people choose an individual, such as a family member or friend as the trustee. Some people opt for a professional trustee, like a bank or trust company.

Step 4: Define the Beneficiaries

In addition to choosing the right trustee, you will also need to specify the parties who will benefit from the trust. You can make your friends and family or even your pets beneficiaries of your trust. In some cases, you can even designate an organization as the beneficiary. 

Moreover, you can also set conditions on how and when the beneficiaries will begin to receive funds or have access to the assets you have placed into your trust.

Step 5: Draft the Trust Document And Transfer Funds

Once you have decided what assets to put into the trust, and who will be the trustee and the beneficiary, it is time for you to draft the trust document. It is strongly recommended to get legal guidance from an attorney for this step. , 

The trust document must clearly identify the trustees and the beneficiaries. It should also come with detailed instructions on how the assets are to be managed and distributed. If you have any specific terms and conditions for the beneficiaries, they should be included in the trust document.

Once the trust document has been drafted and reviewed by an attorney, you can move on to the final step of funding the trust by transferring your assets to it. This process legally changes the ownership of the assets from your name to the name of the trust.

Tips for Choosing a Trustee

One of the most important steps in creating a trust involves selecting the right trustee. Since the trustee’s role is to act in the best interest of the beneficiaries and manage the distribution of your assets according to the terms you have set, you must be careful about delegating this responsibility. 

Below are some tips for choosing a reliable trustee:

  • Consider the Trustee's Financial Expertise: Since the trustee will be responsible for managing your assets, they must have sufficient financial expertise and knowledge.

  • Evaluate Trustworthiness: The person you assign as the trustee will have significant control over the assets in the trust. For this reason, you should choose someone you have complete faith in.

  • Assess Availability: Being a trustee is a time-consuming role. Whoever you are designating for such a responsibility must have time available to fulfill their duties.

  • Professional Trustees: While many people choose a trust amongst friends and family, you can always consider appointing a professional trustee, such as a trust company or financial institution. Not only are they experts in financial management, but they will be impartial and can manage your assets in a professional capacity.

Common Mistakes to Avoid

Since there are many steps involved in setting up a trust fund, it’s possible to make errors. This is why it is strongly recommended to have legal guidance when you create a trust. Below are some common mistakes you should avoid: 

  • Not Funding the Trust: A trust will only be legally effective if it has been properly funded. This means you must ensure that your assets have been properly transferred into the trust.

  • Unclear Beneficiary Designations: If you do not mention the beneficiary of your trust clearly, it can lead to serious legal disputes and challenges. Always make sure that the beneficiary is properly identified when you set up a trust.

  • Choosing the Wrong Type of Trust: Different types of trust have different benefits and limitations. You should speak to an attorney to understand which type of trust would best meet your estate planning objectives.

  • Ignoring Tax Implications: The type of trust you set up might have different tax implications. You should consult with a tax advisor to understand how the trust will affect your estate's tax liability.

 

Trust vs. Will

Trusts and wills are both essential tools in estate planning. However, they serve different purposes and have distinct advantages. 

A trust fund usually allows quicker and more private transfer of assets whereas wills generally require a lengthier legal validation process known as probate. In addition, with a trust fund, you have more control over how to distribute your assets whereas a will typically involves a one-time distribution. For these reasons, trust funds are more flexible and efficient for estate management.

That being said, setting up a trust can be more expensive and complex then drafting a will, especially since you have to think carefully about the type of trust you want to set up, designate a trustee and choose beneficiaries. 

Before deciding on whether you should create a trust fund or a will, you should therefore consider the pros and cons for each and choose the option that best suits your needs.

If you need legal guidance on your estate planning, consider reaching out to a lawyer through UpCounsel to get expert advice and assistance.

 

FAQ

Can I set up a trust on my own?

While it's possible to set up a trust on your own using online tools, it's advisable to seek legal guidance to ensure the trust is properly drafted and complies with state laws.

How much does it cost to set up a trust?

The cost of setting up a trust can vary widely depending on its complexity and the legal fees involved. On average, setting up a trust can cost between $1,000 and $3,000.

Can I change my trust once it's set up?

If you have a revocable trust, you can make changes or revoke it entirely during your lifetime. However, irrevocable trusts are generally not alterable once established.

What happens if the trustee cannot fulfill their role?

If a trustee is unable or unwilling to fulfill their role, a successor trustee, named in the trust document, will take over. If no successor is named, the court may appoint one.