Are you contemplating creating a living trust? If you are, you need to know the distinction between the trustor and trustee, how they’re associated, and each of their roles.
If you are thinking about creating a living trust, you need to comprehend the differences between the trustor and the trustee, in addition to the association between them. Even though one individual is able to be each a trustor and trustee, or trustee and beneficiary, the duties of them are noticeably different. Each comes with their own rights and obligations.
Living Trust Basics
A living trust is a legal device used for the supervision of one’s assets both throughout a person’s lifetime and upon their passing. Although primarily used to avoid probate and decrease or postpone taxes, a living trust might also be used to be eligible for Medicaid payment of long-term healthcare when it is made irrevocable.
Trusts are entities that is separate from the trustor, or the trust creator. The trust holds title to property, has their own federal tax ID number, and files individual tax returns.
A trust involves 3 categories of parties:
- Trustor: an individual that establishes a trust, usually either an individual person or married couple. A trustor can also be referred to as a grantor or a settlor.
- Trustee: individual(s) named by a trust document to maintain and oversee the property in the trust.
- Beneficiary: an individual or nonprofit for which the trust was created, usually the trustor, a child or other family member of the trustor, or a nonprofit. There can be, and usually is, more than one beneficiary.
Through a trust, the trustor moves property to the trust, to be maintained and overseen by the trustee in the interest of the beneficiaries. This agreement sets out the instructions the trustee is to implement in overseeing the trust assets.
Naming a Trustee
A trustee could be a person, two or more people, or a business organization like a corporation. A business organization acting as trustee is usually a financial institution, law practice, or other professional trustee organization.
The trustor also can be the original trustee. When this happens, the trust needs to name a successor trustee that is going to step into that role upon the passing away or debilitation of the trustor.
Beneficiaries also can be named as trustees. A lot of parents name their children being both beneficiaries and as successor co-trustees. Nevertheless, this has the possibility to create disputes between the children should they disagree about the way the trust assets are overseen.
In selecting a trustee, it is vital to choose one that can be trusted to respect your wishes as expressed in your trust agreement, that can be trusted to act in the beneficiaries best interests, and that has the capability and knowledge to oversee the trust assets.
The Role of a Trustee
The obligations of a trustee are to adhere to the conditions of the trust document and to act in the beneficiaries’ best interests in respecting those conditions, a responsibility referred to as fiduciary duty. A lot of trusts provide that trust earnings and assets are to be used for the benefit of the trustor throughout the trustor’s lifetime. Following the trustor’s passing away, the trust either carries on for the benefit of the beneficiaries or concludes, in which case the leftover assets are divided among the beneficiaries.
To reach the desired tax deferment benefits, it is no uncommon for the trust to continue beyond the trustor’s passing, to the benefit of children and their descendants of the trustor. Consequently, the trustee’s role is probably going to continue for a while following the passing of the trustor.
While creating a living trust, you should consider your specific situation as it concerns tax laws and potentially planning for long-term care. You can utilize DIY legal services to receive help in establishing how a living trust can be included in your estate plan.
Edward A. Haman, E. (2022, December 19). Living trust: Trustor vs. trustee. LegalZoom. Retrieved January 20, 2023, from https://www.legalzoom.com/articles/living-trust-trustor-vs-trustee
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