Transferring Property Outright vs. In Trust

Date posted: June 9, 2014



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When you choose the estate planning and probate attorneys at Schwartz Fang & Keating, P.C., we will discuss with you the number of advantages to utilizing a trust. Every client’s needs are different, so it is best to meet with us to discuss your options. There are some points of information that we will discuss with you regarding transferring your property. A trust will decrease the probability of an imprudent disposition of property. Trusts can decrease income and wealth transfer taxes. A trust will ensure that property ultimately will be distributed in accordance with wishes of the original owner. Finally, trusts may protect property from claims of creditors, (including an estranged spouse in a matrimonial action) and from a spendthrift beneficiary.

 

Transfers to minors or to those under a disability are generally appropriate to be in trust. Guardianships or other alternative arrangements can be made. However, they are usually not as effective or efficient as a trust.

 

Uniform Transfer to Minors Act and Uniform Gift to Minors Acts (UTMA/UGMA) account transfers are simple. However, they do not provide flexibility of design for the particular needs of the individual beneficiary. UTMA/UGMA and Section 2503(c) trusts require property be transferred to or to be made available to the minor when he/she reaches the age of majority. Most feel that people who have just attained the age of majority are not adequately mature to take on the responsibility of owning significant property.

 

If property is not transferred in trust, usually certain benefits are lost. For example, if property is transferred in trust, the interest is generally not subject to attachment by creditors. But, if property is given outright, and then the beneficiary transfers it into a trust, the beneficiary’s creditors usually can attach it, even if it is transferred into a trust.

 

On the other hand, if property is placed in trust, the Trustee can be authorized to terminate the trust and distribute the property to the beneficiary. This underlines the importance of understanding the goals of the grantor and careful drafting of a trust.

 

Terms of a Trust

The maximum term of a trust may vary depending on the jurisdiction in which it is created. In New York, the maximum is twenty one (21) years plus lives in being of a specified class of individuals at the creation of the trust. For states such as Delaware and Florida, there is a three hundred and sixty (360) year maximum trust term. In some states, such as Ohio and Virginia, there is no limit. This is one consideration in drafting.

 

Generally, when property is placed in trust for another, the beneficiary is not considered the owner for estate, gift and generation skipping transfer tax purposes. Therefore, generally the value of the assets held in trust is not includible in the estate of the beneficiary. There are exceptions for general powers of appointment and qualified terminable interest property (QTIP).

 

Transferring Outright

When income earned by the trust is distributed outright to a beneficiary, the income tax rates are generally not as compressed as the fiduciary income tax rate schedule, saving on income taxes.

 

By transferring assets outright to beneficiaries, the assets become theirs right away. There are no restrictions on spending assets, and there is no protection from creditors.

 

It is important to understand the priority of your goals, so that the proper planning can be achieved.