Types of Trusts

Revocable Living Trusts

A revocable living trust, sometimes called an "inter vivos trust" is a legal document that allows individuals (the grantors or settlors) to transfer ownership of their assets into a trust during their lifetime, retain control over those assets, and designate beneficiaries to receive the assets upon their death. As the name implies, a revocable living trust is both revocable and operative during the grantor's lifetime.

 

Here are the key features and characteristics of a revocable living trust:

1. Revocable

The grantor retains the ability to modify, amend, or revoke the trust at any time during their lifetime, as long as they are of sound mind and capable of making decisions. This flexibility allows the grantor to adapt the trust to changing circumstances, preferences, and beneficiaries.

2. Living

A revocable living trust is created and funded during the grantor's lifetime, rather than through a will that takes effect upon their death. By establishing the trust while they are alive, the grantor can manage and control their assets during their lifetime and provide for seamless asset management and distribution upon their death.

3. Trustee and Beneficiaries

The grantor typically serves as the initial trustee of the revocable living trust, maintaining control over trust assets and decisions. Upon the grantor's incapacity or death, successor trustees named in the trust document assume responsibility for managing and distributing trust assets according to the grantor's instructions. The trust document also specifies the beneficiaries who will receive the trust assets upon the grantor's death.

4. Probate Avoidance

One of the primary benefits of a revocable living trust is its ability to bypass the probate process for assets held within the trust. Probate is the court-supervised process of validating a will, settling debts and taxes, and distributing assets to beneficiaries. Assets held in a revocable living trust can be distributed to beneficiaries outside of probate, resulting in faster distribution, reduced costs, and increased privacy.

5. Incapacity Planning

A revocable living trust provides an effective mechanism for incapacity planning by allowing the grantor to appoint successor trustees to manage trust assets if they become incapacitated or unable to make decisions. This ensures seamless management and continuity of asset administration without the need for court intervention through guardianship or conservatorship proceedings.

6. Privacy

Unlike wills, which become matters of public record during probate proceedings, revocable living trusts offer greater privacy and confidentiality regarding the distribution of assets and beneficiaries. Trust administration occurs privately and outside of the court system, shielding trust details from public scrutiny.

7. Flexibility and Control

Revocable living trusts offer flexibility in asset management and distribution, allowing grantors to include specific instructions, conditions, and provisions for beneficiaries. Trust documents can be customized to address unique family dynamics, charitable intentions, and asset protection goals.

A revocable living trust is a versatile estate planning tool that provides numerous benefits, including probate avoidance, incapacity planning, privacy, and flexibility. It is advisable to work with an experienced estate planning attorney, such as Attorney Parks, to establish a revocable living trust that aligns with your individual goals, preferences, and financial circumstances.



Irrevocable Trusts


An irrevocable trust is a type of trust arrangement in which the grantor (the person who creates the trust) transfers assets into the trust and relinquishes control and ownership over those assets. Unlike a revocable trust, which can be modified or revoked by the grantor, an irrevocable trust typically cannot be amended or revoked once it is established, except in rare circumstances and with court approval.

 

Here are the key features and characteristics of an irrevocable trust:


Irrevocability

The most distinguishing feature of an irrevocable trust is that, once created, it generally cannot be modified, amended, or revoked by the grantor. The assets transferred into the trust are considered separate from the grantor's personal assets and are governed by the terms and conditions outlined in the trust document.

Asset Protection

Assets held within an irrevocable trust may be shielded from creditors, lawsuits, and potential claims against the grantor's estate. Because the grantor relinquishes ownership and control over the assets, they are no longer considered part of the grantor's estate for legal and financial purposes.

Tax Efficiency

Certain types of irrevocable trusts, such as irrevocable life insurance trusts (ILITs), grantor retained annuity trusts (GRATs), and charitable remainder trusts (CRTs), offer potential tax benefits and advantages. These trusts can help minimize estate taxes, gift taxes, and generation-skipping transfer taxes by leveraging tax exemptions, deductions, and other strategies.

Medicaid Planning

Irrevocable trusts are commonly used in Medicaid planning to help individuals qualify for Medicaid benefits while preserving assets for future generations. By transferring assets into an irrevocable trust, individuals may be able to meet Medicaid eligibility requirements without jeopardizing their eligibility for long-term care benefits.

Charitable Giving

Charitable remainder trusts (CRTs) and other charitable irrevocable trusts allow individuals to support charitable organizations and causes while potentially receiving income tax deductions and other benefits. These trusts enable individuals to make significant charitable contributions while retaining income streams or other benefits during their lifetime or the lifetime of designated beneficiaries.

Special Needs Planning

Special needs trusts (SNTs) are irrevocable trusts designed to provide financial support and protection for individuals with disabilities without jeopardizing their eligibility for government benefits and services. SNTs can be used to supplement government benefits, cover medical expenses, and enhance the quality of life for individuals with special needs.

Trustee and Beneficiaries

Irrevocable trusts appoint trustees to manage trust assets and make distributions to designated beneficiaries according to the terms and conditions outlined in the trust document. The grantor may designate specific beneficiaries, allocate income and principal distributions, and include provisions for discretionary or mandatory distribution. 

A testamentary trust in Ohio is a type of trust that is created within a person's last will and testament and takes effect upon the person's death. Unlike a living trust, which is established during the grantor's lifetime, a testamentary trust is created through the terms of the individual's will and is funded with assets from the estate after the individual passes away.

 

Here are key characteristics and considerations regarding testamentary trusts in Ohio:

A testamentary trust is established through the provisions of a person's last will and testament. The will specifies the terms and conditions of the trust, including the appointment of trustees, identification of beneficiaries, management of trust assets, and distribution of income and principal.

A testamentary trust does not come into existence until the death of the individual who created the will. Upon the person's death, the will is submitted to probate, and the probate court oversees the administration of the estate, including the establishment and funding of the testamentary trust.


The person creating the testamentary trust (the testator) appoints one or more trustees to manage the trust assets and carry out the terms of the trust as outlined in the will. The trustees have fiduciary duties to act in the best interests of the beneficiaries and administer the trust according to the testator's wishes.

The will specifies the beneficiaries who will receive distributions from the testamentary trust. Beneficiaries may include individuals, such as family members or charitable organizations, and the terms of the trust may outline specific conditions, timelines, or purposes for distributions.

Assets are transferred into the testamentary trust as part of the probate process after the individual's death. The executor of the estate is responsible for identifying and transferring assets into the trust, which then becomes a separate legal entity for the benefit of the designated beneficiaries.

Because testamentary trusts are established through a person's will and take effect upon their death, they are subject to probate administration. The probate court oversees the administration of the estate, including the establishment and funding of the testamentary trust, and ensures that the terms of the will and trust are carried out according to Ohio law. This should be noted, as sometimes probate court oversight does not align with the goals of privacy, flexibility, and speed.

Special Needs Trusts

In Ohio, a special needs trust, also known as a supplemental needs trust, is a legal arrangement designed to provide financial support and protection for individuals with disabilities while preserving their eligibility for government benefits and assistance programs, such as Medicaid and Supplemental Security Income (SSI). Special needs trusts are established to supplement, rather than replace, government benefits and to enhance the quality of life for individuals with special needs.

Medicaid Asset Protection Trusts

A Medicaid Asset Protection Trust (MAPT) is a type of irrevocable trust established to help individuals protect their assets from Medicaid spend-down requirements and facilitate eligibility for Medicaid long-term care benefits. Medicaid Asset Protection Trusts are often used as part of Medicaid planning strategies to preserve assets and qualify for Medicaid coverage for nursing home care or other long-term care services.



Charitable Trusts

  • 1. Purpose

    The primary purpose of a charitable trust is to support one or more charitable purposes or organizations that promote education, religion, health, science, arts, culture, social services, environmental conservation, or other charitable endeavors. Charitable trusts are established to benefit the public or a specific community rather than individual beneficiaries.

  • 2. Trust Terms and Conditions

    The trust document outlines the terms, purposes, and conditions for the administration and distribution of trust assets to charitable beneficiaries. The grantor (the person establishing the trust) specifies the charitable purposes, beneficiaries, and guidelines for the use and distribution of trust funds in accordance with Ohio law.

  • 3. Types of Charitable Trusts

    Charitable trusts in Ohio can take various forms, including:

       - Charitable Remainder Trusts (CRTs): Provide income to designated beneficiaries for a specified period, with the remaining assets passing to charitable organizations upon termination of the trust.

       - Charitable Lead Trusts (CLTs): Provide income to charitable organizations for a specified period, with the remaining assets passing to non-charitable beneficiaries upon termination of the trust.

       - Pooled Income Funds: Allow multiple donors to contribute assets to a common fund, with income distributed to beneficiaries and the remainder passing to charitable organizations.

       - Donor-Advised Funds: Facilitate charitable giving by allowing donors to make contributions to a fund managed by a sponsoring organization, with the ability to recommend distributions to specific charities over time.

  • 4. Tax Benefits

    Charitable trusts may offer tax benefits to donors, including income tax deductions for charitable contributions, capital gains tax savings, and estate tax deductions for assets transferred to charitable organizations upon the grantor's death. The Ohio Department of Taxation provides guidelines and regulations regarding charitable deductions and tax-exempt status for charitable trusts.

  • 5. Trustee Selection

    The grantor appoints one or more trustees to manage the charitable trust and administer trust assets in accordance with the trust document and applicable laws. Trustees have fiduciary duties to act in the best interests of the trust and its beneficiaries, including charitable organizations and the public.

  • 6. Administration and Reporting

    Charitable trusts in Ohio are subject to administrative requirements, reporting obligations, and oversight by state authorities to ensure compliance with trust terms, charitable purposes, and legal regulations. Trustees are responsible for maintaining accurate records, filing tax returns, and fulfilling reporting requirements as required by Ohio law.

  • 7. Perpetual Existence

    Charitable trusts may be established as perpetual entities, meaning they can continue to exist indefinitely or for a specified duration outlined in the trust document. Perpetual charitable trusts ensure ongoing support for charitable causes and organizations over time, contributing to the long-term well-being and sustainability of charitable endeavors.

Overall, charitable trusts in Ohio play a vital role in supporting philanthropy, community development, and social impact initiatives. By working with an experienced estate planning attorney, such as myself, Attorney Parks, individuals can create charitable trusts that align with their philanthropic goals, promote meaningful charitable giving, and leave a lasting legacy of generosity and compassion in their communities.

Charitable Trust vs. Foundation

A charitable trust and a foundation are both legal entities established for the purpose of supporting charitable causes, organizations, and initiatives. While they share similar objectives of promoting philanthropy and contributing to the public good, there are key differences in their structures, governance, and tax treatment:

1. Legal Structure

A charitable trust is a legal arrangement in which assets are transferred to a trustee or trustees for the benefit of charitable organizations or purposes. The trust document outlines the terms, purposes, and conditions for the administration and distribution of trust assets in accordance with the grantor's intentions and applicable laws.

A foundation is a separate legal entity, typically established as a nonprofit corporation or charitable trust, with its own governing board, bylaws, and organizational structure. Foundations may be private foundations, which receive funding from a single source, or public foundations, which receive contributions from multiple donors.

2. Governance

Charitable trusts are administered and managed by trustees appointed by the grantor or designated in the trust document. Trustees have fiduciary duties to act in the best interests of the trust and its charitable beneficiaries, including adhering to the trust terms, making prudent investment decisions, and ensuring compliance with legal regulations.

Foundations are governed by a board of directors or trustees responsible for overseeing the foundation's operations, investments, grantmaking activities, and compliance with legal and regulatory requirements. The board of directors sets policies, approves grants, and provides strategic direction for the foundation's charitable endeavors.

3. Tax Treatment

Charitable trusts may qualify for tax-exempt status under state and federal law, allowing trust assets to grow tax-free and distributions to charitable organizations to be tax-deductible for the grantor or beneficiaries. The tax treatment of charitable trusts varies depending on factors such as the type of trust, the nature of charitable activities, and compliance with tax regulations.

Foundations are subject to specific tax regulations and reporting requirements based on their classification as private foundations or public charities. Private foundations are subject to excise taxes on investment income, restrictions on self-dealing, and minimum distribution requirements, while public charities may qualify for more favorable tax treatment and eligibility for tax-deductible contributions from donors.

4. Flexibility and Control

Charitable trusts offer flexibility in structuring charitable giving and tailoring trust provisions to meet the grantor's philanthropic goals, preferences, and objectives. Trust documents can include specific instructions for charitable distributions, investment strategies, and succession planning for trustees.

Foundation: Foundations provide donors with greater control over charitable activities, grantmaking priorities, and organizational governance. Donors have the opportunity to establish their own foundation, define the foundation's mission and programs, and involve family members or advisors in decision-making processes.

Overall, while charitable trusts and foundations share common purposes of supporting charitable causes and philanthropy, they differ in their legal structures, governance models, tax treatment, and operational characteristics. Both entities offer unique advantages and opportunities for individuals and families to make a meaningful impact on their communities and contribute to the greater good.

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