New York Trust Attorney
Wills and trusts that accomplish your estate planning, asset protection and privacy goals.
Benefits of Trusts | Wills vs. Trusts
Wills and trusts can both be components to your estate plan. However, the key to understanding trusts is to look at their added benefits, which include: keeping your estate out of probate after your death, delivering clear instructions should you become incapacitated, creating a continued source of income, gifting, protecting assets and property, and improving eligibility for Medicaid.
In comparison, with a Will alone, transfer of property requires going through the court system (probate) to validate and determine how property will be distributed. This process can be costly. Putting a trust in place transfers your properties while you are alive and avoids this time-consuming, costly process.
Learn more about how to avoid probate below.
Types of Trusts
There are many types of trusts to consider, for example: Revocable and Irrevocable Trusts, Living and Testamentary Trusts, Asset Protection Trusts, Income-Only Trusts, Supplemental Needs Trusts, Special Needs Trusts, Life Insurance Trusts, Qualified Personal Residence Trusts, Grantor Trusts and Charitable Trusts. New York trusts attorneys Berwitz & DiTata LLP will work with you to determine the type of trust that is best suited to achieving your financial and personal goals. Creating the right trust(s) can help you to accomplish your estate planning, asset protection and privacy goals.
How Do I Avoid Probate? | Revocable Living Trusts Avoid Probate
A Revocable Living Trust (“Living Trust”) can be a “Will substitute” and can provide protection during your lifetime and upon your death. During your life, you can be the Grantor (owner), Trustee (manager) and Beneficiary (recipient) of the assets that you transfer into the Trust. Most importantly, you have full use of Trust assets and retain the ability to amend or revoke your Trust at any time. If you are no longer willing or able to assume these responsibilities, your appointed successor Trustee will take over. Upon your death, the Trust assets are distributed to your designated Beneficiaries.
A Living Trust not only achieves the same objectives as a Will, but also protects you while you are alive. Like a Will, it directs the distribution of your assets to take full advantage of favorable estate and gift tax laws. Unlike a Will, it becomes effective immediately and continues to exist after your death.
This is important for two reasons: First, there is no need for probate as your assets are owned by and distributed through your Living Trust. Secondly, it delivers your instructions should you become incapacitated. The Trustee you select to manage your affairs is bound by law to follow your instructions. A Living Trust can protect you from a costly, time consuming and often humiliating guardianship proceeding whereby a Court appoints a legal guardian to make personal and financial decisions on your behalf. Court costs and attorneys’ fees related to the guardianship proceeding are paid from your assets.
Irrevocable Living Trusts
An Irrevocable Income-Only Trust, or Irrevocable Living Trust, is an agreement between the Grantor(s), Trustee(s) and Beneficiary(ies). While it can accomplish what a Revocable Living Trust does, it also is a valuable tool for Medicaid planning. Properly drafted, an Irrevocable Living Trust can provide a continued source of income for you, allow you to become Medicaid eligible, and protect the assets in the Trust against the costs of long-term care. In other words, you can qualify for Medicaid benefits and protect your assets for later distribution to your Beneficiaries.
This type of Trust has many other uses. For instance, it can own life insurance (to be discussed below in the section entitled “Life Insurance Trusts”), and can be used as a vehicle through which to make gifts for the benefit of your children, grandchildren, or other Beneficiaries. The assets placed in a Gift Trust reduce your taxable estate and appreciate in value for your Beneficiaries. The appreciation of these assets is not taxable to you.
Life Insurance Trusts
An Irrevocable Life Insurance Trust is an effective method to exclude the proceeds of your life insurance policies from your taxable estate (as mentioned above under “Irrevocable Living Trust”). This type of Trust enjoys the benefits otherwise associated with the creation of any Trust, such as the avoidance of probate. It can also help to solve the problem of an estate that is “cash poor” (perhaps because it is not beneficial to liquidate investments in closely held businesses, real estate, or retirement funds) without adding value to the gross taxable estate. The laws which govern these types of Trusts are quite exacting and call for the expertise of a qualified estate planning professional.
Supplemental Needs Trusts (SNT) and Special Needs Trusts
These Trusts are used to assist individuals who are or may become disabled and require special needs and/or benefits. Supplemental Needs Trusts and Special Needs Trusts can help support the needs of a disabled individual. Learn more about special needs planning strategies, including how a Supplemental Needs Trust can help families.
Unfortunately because a pet is considered personal property, like furniture or a car, it cannot be named as a beneficiary of a Will. Often, a provision in a Will for the benefit of a pet, for instance by making a bequest to a caretaker, fails because there is no resource if the caretaker takes the money and leaves the pet at the pound. Also, a Will is usually not reviewed until after the pet owner has died. Thus, if the owner is incapacitated or hospitalized, the pet is unprotected – and hungry!
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Berwitz & DiTata LLP
310 Old Country Road
Garden City, NY 11530