9 (Potential) Problems with Your Trust – Massachusetts

By Harry S. Margolis

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All trusts should be reviewed every few years to make sure that they are up-to-date with the law and meet your goals today. The following is a checklist of trust features you can review yourself. (Some of these are only relevant to revocable “living” trusts, not to irrevocable trusts.)

  1. Do you have the right successor trustees? Typically, you will be the trustee of your own revocable trust with your spouse as co-trustee (if you’re married). Trusts should name one or more successors in the event the original trustee or trustees are unable to serve. Make sure that you still want the successors you originally named. Also, do you want them to come on and begin acting as trustees now? And if you and your spouse are co-trustees, do you want the successor or successors to step in when the first of you becomes incapacitated or passes away, or not until neither of you can serve?

  2. Who can remove trustees? You can always change the trustees of your revocable trust. But do you want your heirs to have this right after you pass away? This can often avoid problems if there are communication problems or disagreements with the trustees. On the other hand, you might want to limit this to some extent to make sure heirs aren’t just looking for a trustee to do whatever they say.

  3. Can your spouse change the ultimate distribution of trust assets after you have passed away? Many trusts give surviving spouses a so-called power of appointment to redirect trust assets at their death. This can be important to provide for flexibility to respond to changes in family circumstances. However, this usually doesn’t make sense in second marriages. In a Massachusetts court case, the second wife used her power to give everything to her children instead of the original beneficiaries: her deceased husband’s children. Even in the case of a first marriage, removing this provision from the trust can provide protection for children and grandchildren in case the surviving spouse remarries and becomes estranged from the family.

  4. Does your trust protect your children and grandchildren from lawsuits and divorce? You have the option of drafting your trust to continue for your children’s lives to provide creditor and divorce protection.

  5. Have you funded your trust? We often see great trust documents that don’t do all that’s intended because the clients’ assets are still titled in their names. You can avoid probate and make sure that the estate tax protections in your trust operate as planned by retitling assets in the name of the trust.

  6. Who is named as beneficiary of your retirement plans and other investments? Often clients spend hours with their attorneys crafting estate plans to match their goals and then unintentionally confuse things by naming beneficiaries of retirement plans and investment accounts that are inconsistent with provisions of their wills or trusts. Make sure these are all coordinated.

  7. At what age do children and grandchildren receive their inheritance? Most trusts provide that funds will remain in trust until those inheriting reach a certain age, often 21 or 25. But you can set any age you choose and even permit them to withdraw a portion of the trust at set ages, say half at 25 and half at 30, or a third each at 25, 30 and 35. This doesn’t mean that they can’t benefit from the trust assets in the meantime, but that distribution decisions are made by the trustees until children and grandchildren have more financial experience.

  8. Does your trust have provisions providing for maximum tax deferral if it is named the beneficiary of a retirement plan? While you may choose to have your retirement plans go directly to your heirs — often, this is the simplest approach — if they are going to your trust, it must have special provisions to stretch out the annual required distributions for as long as possible, though with passage of the SECURE Act, this may be less important than it used to be. While before its passage, all retirement plan beneficiaries could “stretch” their withdrawals for their lifetimes, now many are limited to 10 years. Trusts without the proper language are limited to five years. The five-year difference between the two, is less significant than between five years and a lifetime.

  9. Is your trust up-to-date for estate tax purposes? Congress and many states have changed the estate tax laws several times in recent years. If your trust is more than five years old, or if you lived in a different state when it was drafted, it should be reviewed by an estate planning attorney to make certain it is still current.

You can check many of these questions on your own. In fact, it’s a useful exercise to make sure that you understand what is in your trust. Others, particularly those related to tax issues, will require consulting with an estate planning professional. Let us know if you have any questions about your trust.

Related blogs:

You Can’t Amend Your Trust by Post-It Note

D’Agostino Wins MassHealth Trust Case

Trustee Beware — Fee Petition Turned Down

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