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.
Others here may have a better approach.
Joe
you have no idea what his assets are. Might be real estate he wishes to,
ultimately, go to his children or nieces and nephews.
Trusts don't have to be expensive - you do not need to have "truly third
party, unrelated professionals".
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.
Good luck,
Gene E. Utterback, EA, RFC, ABA
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