A wealthy person wants to leave a lot of his wealth to a close personal friend for her to live on (assuming he dies first), but wants to set up the trust so that the trust controls the disposition of the remaining portion after the friend dies. In other words, the surviving friend only has access to the trust while she remains alive but has no power over what happens to the remainder after she dies.
Is there a common name for such a trust?
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I am not a lawyer and your will probably get a more detailed answer from someone else, however, that said, a revocable living trust can do what you want. There are a couple of issues to consider.
1) Who will be the trustee? If the friend is both the trustee and the beneficiary she may be able to loot the trust leaving little or nothing for the successor beneficiaries.
2) What access to the assets of the trust will the friend have during her lifetime? Will she just be entitled to the income? Will she have access to the principal under certain conditions? Will the trust state that she must be maintained in reasonable comfort during her lifetime? Either the trust must be very specific as to what she is entitled to or the trust can be general and the trustee will have to make the decisions.
If the language in the trust is general a lot of time and money can be consumed by litigation between the beneficiary and the trustee if they disagree.
for her to live on (assuming he dies first), but wants to set up the trust so that the trust controls the disposition of the remaining portion after the friend dies. In other words, the surviving friend only has access to the trust while she remains alive but has no power over what happens to the remainder after she dies.
It can be either revocable or not. Irrevocable gets the deposit outside the estate when the grantor dies. Revocable, and it's part of the estate, for what that's worth.
From what I know about such matters, this can be an expensive way to do what the grantor wants. Trustees don't come cheap if they are truly third party, unrelated professionals. And even such professionals can mishandle the investments which defeats the purpose altogether. I recommend instead that his will specify the purchase of a fixed immediate annuity. It can be set up as the principal amount he wishes spent on it, or the amount needed to buy the targeted monthly/yearly income. After death, the friend gets the income stream, with no corpus to worry about after she dies, and the rest of his money goes where he wants.
That's the issue, isn't it? The details are shy. My answer was an alternative solution. Truth is, we can speculate all we want. I'd maintain there are situation the trust works just fine, and also situations that my alternate solution saves the effort of an ongoing trust which at the very least requires human effort year after year. OP used the word "wealthy," right? I wonder how the kids would feel if dad dies but the money is all tied up until the friend dies as well.
My answer was not meant to be definitive, just a continued dialog.
True. However, a lot of the uncertainty and possibilities of abuse connected with trusts also surrounds wills, even though ordinary wills would usually seem to be simpler and straightforward at first glance. Just as hiring a trustee who is not a family member can be expensive, so also an executor of a will who is a disinterested third-party can be quite expensive. And the financial temptations, overcharging, and chances of abuse are still there. Great caution and close monitoring are needed in both trusts and wills.
The most common name for most trusts is a GRANTOR TRUST, but that isn't really your question. You want to know how to have the trust drafted to accomplish the ultimate goal. That won't be easy and it WILL require he work with a trust professional.
For starters - he should not use a revocable trust. A revocable trust is set up to help avoid probate while the grantor (the person who sets up and funds the trust) is alive. On the grantor's death the trust becomes irrevocable and a new trustee gets name. If he wants to limit access to the principal he won't want the close personal friend to be the trustee because doing so will give them unrestricted access to trust assets.
He also needs to be careful about naming the ultimate beneficiary of the trust as the trustee. This person's interests are diametrically opposed to the current trust beneficiary. The current beneficiary will get income, so they want the assets managed to produce the most current income. While the remaindermen want the assets to grow. It is very hard to get growth oriented assets to throw off current income, and income generating assets seldom produce much growth.
Naming EITHER the current beneficiary or the remaindermen as trustee over the other will cause friction and frequently results in a legal battle. When that happens only the attorneys win.
So he will almost certainly need a third party trustee. That will cost money.
Someone will have to pay the taxes on the trust's income. Trusts are generally taxed at the highest individual rates, so many trustees pass the income on to the current beneficiary. That will complicated the friend's return to the point where they may need help with their taxes - but that is a side issue.
I'd recommend that your friend meet with AT LEAST two trust attorneys (NONE from a bank or brokerage house) to discuss how he can best accomplish his goal.
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