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Irrevocable Trust And Asset Protection Attorney In Utah
Irrevocable trusts have an infinite number of types,
variations, and options
These are some of the issues to consider in creating an
irrevocable trust:
1. Grantor. The grantor is the creator of the trust and the
person who is eligible to make gifts to the trust. You may
serve as the grantor of your own trust, or you may ask a
parent or another relative to establish the trust for your
benefit.
2. Trustees. The trustees control the trust and make
decisions about investments and distributions. The trustees
have a duty to follow the instructions in the trust or they
can be held personally liable for breach of their duty to the
beneficiaries. You may choose one or more trustees and you may
give them equal powers or you may divide the powers and
responsibilities of the trustee as you see fit. The grantor
cannot serve as a trustee, but it is possible for a
beneficiary to serve as a trustee. The trust document should
name the successor trustees if the original trustees should
cease ...
... or fail to serve, or it should include a formula for
electing the successor trustees.
3. Beneficiaries. The beneficiaries are the people who are
eligible to receive benefits from the trust. You can name as
many potential beneficiaries as you wish. You can define their
rights in any manner, but it is usually best for asset
protection purposes to limit the rights of the beneficiaries
and give the trustees the discretion to determine how much or
how little to give to the beneficiaries.
4. Trust Protector. The trust protector is an independent
person with special powers to watch over the trustees and
ensure that the trust accomplishes its intended purposes. You
may give the trust protector the power to remove and replace
the trustees, to terminate the trust, to amend the trust to
adapt to changes in the law, to divide the trust in the event
of divorce, to eliminate a beneficiary from the trust, to add
beneficiaries to the trust, and to exercise these powers with
or without the consent of the grantor, the trustees, or the
beneficiaries.
5. Governing Law. You can generally choose the law that
will govern your trust by designating the governing law in the
trust instrument and by choosing a trustee located in the
jurisdiction where you want the trust to be governed. Offshore
trusts can provide excellent protection, but they tend to have
a negative image that can do more harm than good. There is a
vast difference in the laws of the different states and it is
critically important to choose a jurisdiction whose laws are
best suited to accomplish your purposes. For example, in many
states, the ex-spouses of a beneficiary have a claim on the
assets of the trust for alimony, support, and even property
division in the event of a divorce. Other states specifically
provide that a beneficial interest in a trust is not a
property right and that distributions may be made in the
“absolute” discretion of the trustee.
6. Distributions During Life. I generally recommend that
you leave the distribution schedule flexible during your life
and allow the trustees discretion to make distributions among
a large pool of potential beneficiaries at such times and in
such amounts as they determine.
7. Distributions After Your Death. Most clients leave
specific instructions for the division and distribution of
assets after their death. I generally suggest that you give
the trustees discretion to continue the trust after your
death, in order to protect your spouse and children from a
remarriage, divorce, bankruptcy, or other unexpected
liability. You can limit the rights of the beneficiaries in
order to protect them from themselves, or you can give them
the power to serve as their own trustee and distribute the
assets to themselves as they wish.
8. Powers of Appointment. A power of appointment is a power
given to any person to change or “re-write” the requirements
of the trust. You can give the beneficiaries or others broad
powers to make changes, or you can give them limited powers to
make changes within a certain group of beneficiaries. For
example, you may give your spouse the power to make changes
among your children after your death, but not the power to
give all the assets to a new spouse.
9. Income Tax Treatment. You may design your trust so that
its income is taxable to you, to the beneficiaries, or to the
trust itself. These are important decisions that should be
made with the help of a qualified tax attorney. You may also
design the trust with enough flexibility so that the income
tax treatment can be changed from time to time. You may choose
to have the trust income taxable to yourself for a time so the
assets of the trust can grow tax free. This “tax burn”
technique is a powerful tool for the elimination of estate
taxes.
10. Gift and Estate Tax Treatment. You can design an
irrevocable trust so that its assets are included or excluded
from your taxable estate. If you want to transfer unlimited
amounts to an asset protection trust without any gift tax
consequences, you will design your trust so it is included in
your taxable estate. If your purpose is to avoid the estate
tax, you will design your trust so that it is excluded from
your taxable estate.
11. Control. If you can find a parent or another person to
serve as the grantor of your trust, you can serve as a trustee
and retain significant control over your own trust. If you are
the grantor, you may want to have the trust create a limited
liability company with you as manager so you can retain
control over the assets.
12. Flexibility in an Irrevocable Trust. The word
“irrevocable” can be frightening and misleading. A trust is
irrevocable if the grantor retains no power to obtain
possession of the assets of the trust or to amend the trust.
However, there are many ways for a grantor to retain control,
flexibility, and access to the benefits of an irrevocable
trust. A good asset protection attorney should be able to give
you the control and flexibility that you want without giving
you so much legal control that you lose the asset protection
and estate tax benefits of the trust.
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