Estate Planning Week, Part Five: Estate Planning Trusts 101

October 25, 2019

When estate planning, trusts are an important element to consider. But there are several types of trusts you can utilize in an estate plan. And trust us, there are differences between those types. Trusts are an effective estate planning tool for a variety of clients, depending on your estate planning goals and objectives. We’re here to help you understand the basics surrounding the three most common types of trusts for estate planning.

Estate Planning Trusts 101

Testamentary Trust

What is a testamentary trust?

A testamentary trust is a trust that is outlined within your will (the “testament” that you make in your will). When you die, your estate’s personal representative will establish the trust based on the guidelines you set out in your will. Then the trust is funded with the assets that you have specified in your estate plan. This type of trust must go through the probate process in order to be set up. The trust springs into action upon the triggering event — your death. Up until the time of your death, this type of trust is revocable and modifiable so long as you are competent (and alive). This type of trust is common for parents who want to set out parameters for how estate assets, life insurance and other assets will be used for the benefit of their minor children in the event of their early death.

Living Trust

What is a living trust? And how is a testamentary trust different from a living trust?

Unlike a testamentary trust, a living trust is established while you are alive. During your lifetime, you are the “trustee” (the person in charge of the trust). The living trust shares your Social Security number and you, as the grantor, will maintain control over the assets that are in the trust. You are free to title assets in the name of the trust and/or remove assets from the trust at any time while you are living and competent. Think of the living trust like a bucket. You create the bucket through completing the trust document and then you put stuff in the bucket (funding the trust). Assets that are correctly titled in the name of a living trust avoid the probate process — a key difference between a testamentary trust and a living trust.  If you correctly fund a living trust, at the time of your death your estate can avoid the probate process. The successor trustee, following your death, simply administers the trust according to the terms you set out.

Irrevocable Trust

What is an irrevocable trust?

An irrevocable trust, like its name implies, is a trust that cannot be changed or revoked once set up. While there are limited exceptions to this rule, such as court intervention, the idea is that the trust permanently maintains its terms as set out by the grantor. There are different types of irrevocable trusts, depending on the unique set of facts or purpose behind the trust’s establishment. This type of trust has its own tax identification number and is subject to administrative costs upon establishment, such as yearly tax returns, maintenance fees, etc. Often irrevocable trusts are used to transfer assets out of an estate prior to death, set up a trust for someone with special needs or plan for future estate taxes utilizing life insurance.

You should talk with an experienced trust and estate planning attorney to help you determine which trust is right for you. Using a trust in your estate plan can help protect your assets and avoid taxes.

This article should not be construed as legal advice. Situations are different and it’s impossible to provide legal advice for every situation without knowing the individual facts. 


If you need help with an Omaha area case, contact Hightower Reff Law today and come visit with one of the attorneys at the Omaha office. 

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