By CURT FERGUSON
Every so often I meet someone who, upon learning that I am an estate planning attorney, awkwardly volunteers: “My attorney says I don’t need a trust.” I think to myself, “I wasn’t asking, but that’s nice,” and if this is a shuttle bus ride or checkout line conversation I don’t ask further questions. But, if the conversation is with a farmer seeking my advice, I ask questions, and typically discover common misconceptions.
Usually I learn that the farmer (1) is referring to a revocable living trust, (2) isn’t concerned about estate taxes since their estate is less than $4,000,000, and (3) believes that planning with a trust is complicated and expensive. Let’s assume you are this farmer. Is it true that you don’t need a trust?
First, there are many, many different types of trusts but for this article we will accept “revocable living trust” as what you think you don’t need. A revocable living trust is an estate planning document which spells out your desires and directives for use and management of your assets during any period that you are disabled, and then for the division and distribution of those assets upon your death.
Simply put, no one “needs a trust.” We need food, clothing and shelter. Maybe we need companionship, friends or God. But no one needs an estate plan.
If you do not care how you will be provided for and how your affairs will be managed in the event you become disabled, then you have no need for disability planning. Probate law says that if you lose your mental faculties, a person who cares enough to bother about it can ask a court to appoint them as your guardian. They will then be able to manage your care and finances under the watchful eye of a judge.
Similarly, if you don’t care what happens to your assets and your family after you die, you don’t need a plan. Probate law provides a “will” for you. At your death, someone petitions the probate court to be appointed as representative of your estate. Then, after paying your bills and taxes, half of your assets are given to your spouse and the rest to your children equally. The legal fees for the court proceedings will cost your family rather handsomely, but who cares?
Second, strictly speaking, a revocable living trust doesn’t avoid estate taxes. The living trust can help minimize estate taxes if you are married and your living trust says to create upon your death an irrevocable trust for your spouse. It isn’t the revocable living trust that avoids tax, but rather the irrevocable trust it creates upon your death.
There are other ways to avoid estate taxes. You could leave some of your assets to your children or charity for instance. If you don’t want to leave your spouse out, the irrevocable trust for your spouse could be created under a will (instead of under a revocable living trust). Maybe that’s why an attorney told you that you don’t need a living trust; he prefers that the trust be created for your spouse through probate of your will on death.
But, maybe you don’t need estate tax planning, because your estate is well under $4,000,000 and you know the politicians will never lower the estate tax exemption.
Maybe you are thinking, “Of course I care; I just don’t need a living trust because I have done life estate deeds to my kids on four properties, have joint owners with me on my other four deeds and two investment accounts, my spouse is the designated beneficiary of my IRA and two life insurance policies, and the kids own my other two policies.” Ah, that is different. You don’t need a trust, because you already have sixteen estate plans! The title of each asset is a standalone “plan” for that asset. These plans offer no asset protection advantages
for your spouse or your children, however.
Also, most of the sixteen plans are irrevocable. To avoid one revocable trust you made twelve irrevocable plans. What if your spouse gets ill? A son or daughter gets divorced? A farming child quits, or dies? What if your wishes change? You cannot change most of these plans, and the others will require paperwork for each asset.
A revocable living trust would have made that much simpler. Amend one document.
Want to simplify your life, keep your plan flexible, spell out your desires in the clearest way possible, provide all of the advantages that you can to the heirs, and do estate tax planning if you need to? Reconsider the value of a revocable living trust.
Curt W. Ferguson owns The Estate Planning Center in Salem, where he and his team help farm families create, maintain, and carry out effective estate and succession plans. Learn more at his monthly workshops or by visiting www.thefarmersestateplanningattorneys.com.