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Oct 31, 2017

What are the most common mistakes people make when creating their trusts?

I had a client recently ask me, “What are the top three things you see ‘wrong’ in other people’s trusts?” My initial response was that all three issues are the same: not having one in the first place!

Among the many benefits an estate plan can provide is ameliorating the impact of what might be called problematic beneficiaries. Many of us can count among our family members individuals with mental health issues, ranging from mild depression to conditions that warrant serious treatment. Families are also dealing with divorcing children and, due to the nation’s opioid crisis, substance abuse.

A thoughtful and thorough estate plan can acknowledge these issues and offer solutions that include providing physical and psychological treatment for mental disorders, and for those with abuse problems, rehabilitation programs and post-program guidance and supervision. Without such provisions, a family will be forced to deal with these issues, not to mention the decision about what, if any, assets problematic beneficiaries should receive from the estate.

So, if yours is a family of means without an estate plan, here is the first thing you need to do:

Make an appointment with an estate planning attorney. Easy enough, right? Not for everyone. Many people think so much about the specifics of their estate plan that they get what I call “analysis paralysis” and end up doing nothing. But if you sit down with an attorney who specializes in estate planning, you will leave the meeting with almost all of your questions answered, including who should be “in charge” after you die and who should receive your assets and how.

However, despite your good intentions, sometimes you can accidentally make things harder on your beneficiaries and trustees. Which brings us to the three most common trust mistakes:

TRUST MISTAKE NUMBER ONE: BAD TRUSTEE CHOICES

Anyone who has ever had the questionable “privilege” of being named a trustee (the person who manages your trust at your death or incapacity) will tell you it is a difficult and often thankless job. Think of those problematic beneficiaries. They may want their entire trust distributed immediately rather than waiting on a lifetime of payouts. Now the trustee has to deal with a disgruntled beneficiary calling and constantly requesting money from his trust. But what I frequently see are clients who still consider it a privilege nonetheless, and pick a best friend who hasn’t got a clue about trusts, or the most fiscally responsible but least liked of the siblings. The solution?

Choose a corporate trustee. There are companies whose sole purpose is to act as trustees for clients. By appointing a corporate trustee, two things happen: One, you have somebody handling your trust who knows exactly what they are doing and the responsibilities associated with trusteeship. And two, they have no vested interest, financially or emotionally, in executing your wishes so they can make sure your wishes are carried out accordingly.

TRUST MISTAKE NUMBER TWO: YOU CREATE THE TRUST AND DON’T FUND IT

Is everything complete when you sign your trust? No! Now you now have to fund it. And this one is on you. The estate planning attorney will tell you how to do it, but then you must implement it. That said, you can retain someone (your attorney or financial advisor) to make sure you’re leveraging all the tax and other benefits by properly funding the trust. Otherwise, when you die, everything is still in your name and you’ve nullified practically every benefit a trust has to offer.

TRUST MISTAKE NUMBER THREE: YOU APPOINT MULTIPLE TRUSTEES

Returning to the “privilege” aspect of trustee appointments, when you appoint multiple trustees to act together you create an administrative nightmare. Just remember this: Every check, form and tax return has to be signed by all of the trustees. I have seen trusts with up to four trustees and it was nearly impossible to get anything accomplished.

So, to avoid the most common mistakes when creating trusts: First, create an estate plan with trusts, then be sure to fund the trusts and lastly choose a single corporate trustee to manage them. Your beneficiaries will thank you.

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