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Trust Planning - Thomas J. Clarke
Trust Planning - Thomas J. Clarke

Benefits of an Estate Planning Lawyer

As trusts can be very difficult & complicated to set up, an estate planning attorney can guide you through the process.

Furthermore, as trusts come in a number of forms, an attorney experienced in trust law can explain the differences and advise which best fit your situation. Some of the most common forms of Trusts include:

Asset Protection Trust: This type, frequently established in foreign countries, is designed to protect your assets from claims of future creditors.

Charitable Trust: There are a number of types of charitable trusts. They are generally set up in order to benefit a particular charity or the public at large. Charitable Trusts are usually established as part of an estate plan in order to minimize or avoid the imposition of Federal estate and gift taxes, as well as the inheritence and estate taxes of some states.

Constructive Trust: A type of trust created by a court to benefit a party that has been injustly deprived of its rights, due to either a person obtaining or holding legal right to property that they should not possess because of unjust enrichment or interference. A constructive trust is not actually a trust, in the true meaning of the word, in which the trustee is to have duties of administration over a period of time. Rather, it is a passive, temporary arrangement, in which the trustee's sole duty is to transfer the title and possession to the beneficiary.

Express Trusts: These are trusts specifically created by the grantor under a Trust agreement or declaration of Trust.

Implied Trusts: Arising from particular facts and circumstances in which the court determines that, though there was not any formal declaration of a Trust, there was the intent on the part of the property owner that the property be used for a specific purpose or go to a specific person.

Inter Vivos Trust: A Trust that is created during the lifetime of the grantor. There a several types of these, the most common is a basic revocable "living" Trust, in which the grantor transfers title to property to a Trust, serves as the initial Trustee, and has the ability to remove the property from the Trust during his or her lifetime.

Irrevocable Trust: A Trust that cannot be changed or revoked once it has been created (except in extreme extenuating circumstances). After a grantor transfers property to an irrevocable Trust, the grantor can no longer take the property back from the Trust. This often carries with it tax benefits.

"Living" Trust: A Trust created during the lifetime of a grantor that can be changed or revoked. The grantor is usually the initial Trustee as well as the initial beneficiary of the Trust, while his or her spouse and children are the the ultimate beneficiaries of the Trust.

Resulting Trust: This is a Trust that arises from, or is created by operation of law, when the legal title to property is transferred, but the beneficial interest is to be enjoyed by someone other than the person who recieved the legal title.

Special Needs Trust: This is a Trust, which is established for an individual who receives government benefits, so as not to disqualify the beneficiary from such government benefits. Under ordinary circumstances, when a person is receiving government benefits, an inheritance or receipt of a gift could reduce or eliminate the individual's eligibility for such benefits. By establishing a Trust that provides for luxuries or other benefits that otherwise could not be obtained by the beneficiary, the beneficiary can obtain the benefits from the Trust without defeating his or her eligibility for government benefits. Often a Special Needs Trust includes a event that ends the Trust, in the event that it could be used to make the beneficiary ineligible for government benefits.

Spendthrift Trust: Established for a beneficiary, this trust does not permit the beneficiary to sell or pledge away his or her interests in the Trust. Furthermore, it is beyond the reach of the beneficiaries creditors, until such time as the Trust property is distributed out of the Trust and placed in the hands of the beneficiary.

Tax By-Pass Trust: A type of Trust created to enable one spouse to leave money to the other, while limiting the amount of Federal Estate tax that would be payable on the death of the second spouse.

Testamentary Trust: A Trust included under the terms and conditions established in a Will. Such Trusts take effect after the death of the person making the Will.

Totten Trust: A Trust created during the lifetime of the grantor by depositing money into an account at a financial institution in his or her name as the Trustee for another. It is a revocable Trust, in which the gift is not completed until the grantor's death, or an unequivocal act reflecting the gift during the grantor's lifetime.

It should also be noted that many Trusts themselves establish "sub-Trusts". Trusts can be structured to handle a variety of situations but careful drafting is essential to make the plan work. An attorney skilled in trust law can help you to do this and explain its benefits to estate planning.

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