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A common misconception people have with estate planning is that a will is sufficient to take care distribution of your assets. But before you leave everything to just a will, consider these circumstances where a will simply doesn’t work:
A will must go through the probate process to resolve the distribution of your estate after your creditors have satisfied their debtor's claims. Once a will is open to probate, anyone can get access to it and obtain personal information. The will has to be validated, an executor appointed, creditor claims satisfied, access given to bank accounts, orders transferring legal title of assets and real property. This is a long, public, process that opens the your estate to creditor claims and dilution with statutory attorney fees and executor fees. This is particularly true if you own property in another state.
A will takes effect when you die. If you become incapacitated, you need a complete estate plan that provides all the essential documents required to manage your financial affairs and health care needs during your incapacity. Without the proper documentation, the Court will appoint a conservator to manage your affairs for you.
When you create your estate plan, the idea that one of your adult children would use their inheritance to their detriment is not an uncommon concern. You worked hard for your wealth, and hopefully you have acquired some real estate, or maybe you have a family business. You built this foundation with the hope that you can set up your family for generations. The last thing you want is for your youngest son, the one that grew up on easy street, living at home into his 30s to take that inheritance and squander it on a ponzi scheme or, worse, some hookers and blow. You want to make sure your grandchildren can go to the best schools and that the life insurance benefits, real estate, business or other assets you leave behind can grow and support your family. You want to make sure your family can inherit the wealth you spent a lifetime building and not squander or lose it.
When it comes to leaving an inheritance, most lawyers will advise you to place the money in a trust, which is the right thing to do. However, when you distribute the trust assets outright or at specific ages over time. But giving outright ownership of the trust assets in this way puts everything you’ve worked so hard to leave behind at risk. While a trust may protect your loved ones’ inheritance as long as the assets are held by the trust, once the assets are disbursed to the beneficiary, they can be lost to future creditors, a catastrophic accident or illness, divorce, bankruptcy, or a major lawsuit.
One unique planning vehicle designed to prevent the potential perils of outright distributions is a Lifetime Asset Protection Trust (LAPT). These trusts last for the lifetime of their respective beneficiaries, and provide them with a unique and priceless gift. With an LAPT, for instance, the beneficiary can use and invest the trust assets, yet at the same time, the trust provides airtight asset protection from unexpected life events, such as divorce or serious debt, which have the potential to wipe out their inheritance.
A trustee of your choice owns the trust assets upon your death. Because the LAPT is discretionary, this individual has the power to distribute the assets at their own discretion, instead of being required to release them in a rigid structure. This discretionary power enables the trustee to control when and how your kids can access their inheritance, so they’re not only protected from outside threats like ex-spouses and creditors, but from their own poor judgment as well.
Rather than risking your inheritance by leaving it outright to your children at certain ages or following certain life events, such as graduating college, you can gift your assets to your children at the time of your death using an LAPT. When you gift an inheritance to your kids via an LAPT, the trustee of the trust owns the assets, not your children.
Therefore, if your kids ever get divorced, i.e. bankruptcy, have a major medical issue, or are ordered to pay damages in a lawsuit, they can’t lose their inheritance because they never owned it in the first place. An LAPT can be built into a revocable trust, which becomes irrevocable at the time of your death and holds your loved one’s inheritance in continued trust for their lifetime.
LAPTs are primarily designed to protect your loved ones and their inheritance from much more common threats, such as divorce, serious debt, devastating illness, and unfortunate accidents. At the same time, LAPTs can provide your heirs with a unique educational opportunity in which they gain valuable experience managing and growing their inheritance, while enjoying airtight asset protection. This is done by allowing the beneficiary to become a co-trustee with someone you’ve named at a specific age or stage of life, and then the beneficiary can become the sole trustee later in life, once he or she has been properly educated and is ready to take over.
The LAPT is discretionary, which means that the trust would not only protect your heir from outside threats, like creditors and ex-spouses, but also from their own mistakes. Moreover, the trustee you name holds the trust’s assets upon your death. This gives the person you choose the power to distribute its assets to the beneficiary at their discretion, rather than requiring him or her to release the assets in more structured ways, such as in staggered distributions at certain ages. You may choose to provide non-binding guidelines directing the trustee on how the client would choose to make distributions in up to 10 different scenarios, such as for the purchase of a home, a wedding, the start of a business, and/or travel.
Some clients choose to provide guidelines around how they would make investment decisions, as well. This option ensures that future trustees will be aware of your values when determining whether to make distributions, as well as how to invest trust assets, rather than operating in a vacuum of information, which often leads to problems down the road. In many cases, the beneficiary may eventually become the trustee him or herself, and then resign and appoint an independent trustee, if needed, for asset-protection purposes.
There are several different ways we can structure the trust to meet your family’s unique needs, so be sure to ask us what options might be best for your particular situation.
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