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03.10.20

The importance of transferring assets to your trust

BY Alexandra P. Crean

Signing your estate planning documents, such as your will and revocable trust, is an important step in the estate planning process. Having these documents in place allows you to name a person who will be responsible for handling your estate after your death or upon your incapacity, and puts in place a plan for the distribution of your assets upon your death.

A funded revocable trust provides privacy, because assets in your trust are not subject to probate proceedings and therefore do not become a part of the public record through probate proceedings. In addition, the trustees of the trust have immediate access to assets to pay expenses, which can take the burden off of loved ones in a time of grief. In some cases, a trust can provide beneficiaries with creditor protection as well as preserve wealth for future generations through tax minimization techniques.

With that said, the signing of your estate planning documents is only the first step in an ongoing process. Giving thought to how your assets are titled and who you name as the beneficiaries of retirement accounts is the second step; and re-titling those assets and naming the beneficiaries is the third and most important step of them all.

You should consider re-titling financial accounts, such as bank accounts and brokerage accounts, in the name of your trust as these are typically liquid (or can become liquid relatively easily) and can be used to pay expenses. With that said, however, it may not make sense to re-title a "household" checking account in the name of your trust. Instead of re-titling that account, you should consider adding a joint-tenant for "convenience only" or adding a "transfer on death/pay on death" direction to these types of accounts.

In order to re-title these accounts, you will need to contact each financial institution and request paperwork to re-title. Often this will involve opening a trust account (which is usually under your social security number).

In addition, you should also consider transferring business interests, such as limited partnership interests or limited liability company interests, to your trust. The transferability of these assets depends on the provisions of the entity's operating agreement. Your estate planning attorney should review the operating agreement to determine whether these assets can be transferred and if so, the requirements for transferring.

The decision to re-title real estate in the name of your trust depends on its location and current ownership structure. If it is advisable to re-title real estate in the name of your trust, you will need to sign a deed and a trustee's certificate prepared by your estate planning attorney or real estate attorney.

If you re-title your primary residence to your trust, you should ensure that any homestead declarations and exemptions from property taxes are preserved.

Similarly, the decision to name your trust as the beneficiary of your retirement accounts depends on many factors, including the identity(ies) of the beneficiary(ies) and their relation to you, their age(s) and financial situation(s), as well as the dispositive provisions of the trust itself. This decision has been complicated by the newly enacted SECURE Act. If you have named your trust as a beneficiary of one or more of your retirement accounts, you should contact your estate planning attorney for a review of your estate plan and beneficiary designations for these accounts.

The foregoing recommendations are not "one size fits all" and you should work with your estate planning attorney to identify assets that are appropriate for re-titling in the name of your trust. Additionally, you, in consultation with your estate planning attorney, should plan on reviewing your estate plan, including the titling of your assets and beneficiary designations, with some degree of regularity—typically at least once every five to ten years (depending on your age), and sooner in the case of a change of marital status, financial situation, residency or health.

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Alexandra P. Crean

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