The primary benefit of setting up a Trust is to avoid probate. In order to do that, however, clients must transfer all assets that would normally require probate into their Trusts as Trusts are merely empty shells with no effect if these assets aren’t transferred properly. This article outlines the method by which assets should be transferred into a Trust.
REAL PROPERTY
To transfer real property into your Trust, a new deed reflecting the name of the Trust must be executed, notarized and recorded with the County Recorder in the County where the property is located. Care must be taken that the exact legal description in the existing deed appears on the new deed. If the deed is not executed properly and title of your real estate is not in the name of your Trust on your death, a probate proceeding may be needed to confirm that property to your beneficiaries. Not doing so might also very well open up the door for estate challenges.
NOTE: when transferring a title to a Trust, the Trustee must be named before the name of the Trust. This is because Trusts are not themselves recognized entities; Trusts can be better thought of as contracts with society that society will enforce in court through fiduciary duties. Because of this, Title to property must actually be held by the Trustee on behalf of the Trust.
NOTE ALSO: Federal law prohibits acceleration of any indebtedness by any lending institution or private individual on a transfer of residential real estate into a revocable trust. However, where there is an existing indebtedness on real estate other than residential (e.g., commercial and/or multi-unit), it will be necessary to contact the financial institution holding either the mortgage or deed of trust before placing it in the name of the Trust. The failure to obtain the lender’s consent to the transfer of non-residential property could potentially lead to the lender attempting to accelerate the loan based on a “due-on-sale” clause contained in the note or deed of trust. Typically, such consent will be granted by the lender after it has reviewed the Certificate of Trust and the appropriate assignment documents have been executed.
There can be special problems with the transfer of property held under a land lease; therefore, you should obtain the appropriate advice prior to any such transfer
INSURANCE IMPLICATIONS: When your insured property (e.g., your residence) has been re-titled in the name of your Trust, you should notify the insurance company (or agent) of the transfer and ask whether any change in the policy is required. This should apply to both casualty and liability insurance. It may be desirable for the policy to indicate that the Trust is an additional insured. Additionally, if you purchased an owner’s title policy of insurance when you purchased your home, you should notify that insurer of your trust as well and determine whether an endorsement on your policy will be required. If your title insurer indicates no additional paperwork is required, you should get that determination in writing.
Please note that if you should refinance or borrow against your property, the lender or the title company may require that the property be transferred out of your Trust and into your name as an individual (this saves the lender and the title company the task of reading the trust in order to verify that it does not contain any terms or conditions which could interfere with the lender’s security interest). Be sure that you ask the title company to prepare and record a deed transferring the property back into the Trust as soon as the refinancing is complete. If this does not occur, probate of the property may be necessary. In the event the title company will not cooperate, don’t worry; you can still prepare and record the appropriate deed to return the property to your Trust.
As you acquire new property, simply instruct the escrow officer handling the transaction that you wish to have the title recorded in the name of your Trust. You may need to provide the escrow officer or title company with a copy of the Certificate of Trust.
SECURITY INTERESTS
Most real estate security interests (e.g., sales contracts or deeds of trust) should be held in the name of the Trust. To transfer security interests into your Trust, an assignment of the contract/deed of trust reflecting the name of the Trust must be executed, notarized and recorded with the County Recorder in the County where the property is located.
OIL, GAS, AND MINERAL RIGHTS
Oil, gas and mineral rights are often the most troublesome of assets to transfer to a Trust as, depending on the location or depending on how the assets came into existence, they may be treated either as an interest in real estate or an interest in personal property. The title documents must be thoroughly examined to determine the exact method by which such rights should be transferred to the Trust.
BANK/SAVINGS ACCOUNTS/SAFE DEPOSIT BOXES
The transfer of Money Market Accounts, Savings Accounts and Timed Deposits (CD’s) into your Trust is typically straightforward. To do this you should provide your bank a copy of the Certificate of Trust. You will then sign new signature cards as Trustee of your Trust. Generally you will not have to open new accounts to replace existing accounts; the only change is on the bank signature cards. For a checking account, you generally do not need new checks
When opening new accounts, simply instruct the bank that you wish to have the title of the account in the name of your Trust. You may need to provide the bank with a copy of the Certificate of Trust.
Safe deposit boxes should be placed in the name of your Trust so your successor Trustee will have no difficulty in gaining access to the box.
STOCKS AND BONDS
To transfer stocks or bonds into the name of your Trust, a different procedure is used for privately held stock compared to that which is used for stock publicly traded on an exchange.
1. Privately Held Stock
The transfer of privately held security instruments, such as stocks in a privately held corporation, can be accomplished simply by surrendering the existing stock certificates and having new stock certificates prepared in the name of the Trust. This normally does not require a permit from a state agency, nor does it usually have any type of adverse tax consequence. However, the transfer of stock in a privately held corporation normally requires the approval of the corporation. Typically, such consent will be granted by the corporation after it has reviewed the Certificate of Trust and the appropriate assignment documents have been executed. Shares of individual professional corporations are usually not transferred to trusts because of statutory restrictions. You should obtain legal and tax advice prior to assigning any privately held stock or other security interest to your Trust.
2. Publicly Held Stock
In the case of publicly held stocks or bonds, it will be necessary to work through a stockbroker or through the institution from which the assets were purchased (such as a Dividend Reinvestment Plan or an Electronic Registration Plan). If you currently possess the certificate(s), the broker will require you to surrender the certificate(s) and sign certain transfer documents. It’s best to always send certificates via certified mail. For a standard brokerage (and/or a mutual fund) account, generally, a request to the broker or account manager is sufficient. They may also request a copy of the Trust Agreement, but frequently all that is required is a copy of the Certificate of Trust.
PARTNERSHIPS
Partnerships generally are either public or non-public.
1. Public
If a partnership was bought through a public offering, the institution making the sale should be contacted and given a copy of this instructional letter with a request that ownership name be changed to the name of the Trust. The institution may also require a copy of the Certificate of Trust Agreement.
2. Non-Public
The transfer to Trust of a non-public Partnership Interest (whether General or Limited) is generally accomplished by an Assignment which may or may not need the approval of the general partners or the approval of all the partners. The best way to proceed is to contact the general partners for guidance. Typically, such consent will be granted by the partnership after it has reviewed the Certificate of Trust and the appropriate assignment documents have been executed.
Further acquisition of partnership interests creates no problems. The purchase of the partnership interest is simply titled in the name of the Trust at the time of acquisition.
LIMITED LIABILITY COMPANIES
A trust can be a member of a limited liability company (“LLC”). The transfer of an LLC interest to a Trust may require the approval of the LLC. Typically, such consent will be granted by the LLC after it has reviewed the Certificate of Trust and the appropriate assignment documents have been executed.
If you acquire any future LLC interest, simply instruct the LLC that you wish to hold title in the name of your Trust. You will likely need to provide the LLC with a copy of the Certificate of Trust.
BUSINESS INTERESTS
Any other business interest or sole proprietorship can generally be transferred to the Trust by an “Assignment of Business Interest”. This document assigns all property/assets owned in the name of the business, for the purpose of determining title, into your Trust so that these interests will avoid probate. However, there may be specific issues with the transfer of interests in businesses (such as permits and licenses) and thus it is necessary that they be reviewed in detail before making the transfer. Accordingly, it is recommended that you obtain legal and tax advice prior to transferring any business interest to your Trust.
If you have a business interest in a franchise, any transfer of such interest to your Trust will probably require the consent of the franchisor. Typically, such consent will be granted by the franchisor after it has reviewed the Certificate of Trust and the appropriate assignment documents have been executed.
INSURANCES AND ANNUITIES
Life Insurances and Annuities are assets that may or may not need to be placed in Trust because the proceeds transfer contractually to the named beneficiary and, therefore, already avoid probate. However, if you wish the proceeds to be distributed in the same manner as the other trust assets (which is usually the case), the Trust should be the beneficiary. You must instruct each insurance company or your insurance agent to designate your Trust as the beneficiary (with annuities, the Trust should also be designated as the owner).
IRA’s/KEOGH’s/401(k)’s/ETC.
An IRA, 401(k) plan or Keogh plan, wherever invested, must remain in the owner’s name and Social Security number; this is not a major problem in estate planning since the account is paid, at your death, to a named beneficiary and, thus, does not have to go through probate. However, it may be desirable to have the account paid to your trust instead of to a named beneficiary (e.g., the beneficiary is a minor and/or the trust has more details for all contingencies); for a husband and wife, the non-owner spouse is usually named the primary beneficiary and the Trust may be named the contingent beneficiary. Please realize that any change of a beneficiary designation of a retirement plan could have important income tax consequences; therefore, you should consult with your tax advisor prior to making any change.
DIGITAL ASSETS AND/OR RIGHTS
Your digital assets and/or rights (including any “social media”, on-line accounts and/or email accounts) can be automatically transferred to the Trust with the “Assignment of Personal Property.” It is still important, however, to maintain a list of all of your digital assets and print it out on paper; this list should include all of your on-line accounts as well as a list of usernames and passwords. This is sensitive information, so protect this information by keeping it in a secure place. Some people will put this information in a sealed envelope to be opened only upon death or incapacity. Wherever you keep this information, make sure you tell your successor Trustee (and agent under the Power of Attorney, if different) where this information can be found. You should update this list at least yearly. In addition, tell your successor Trustee what you want done with your digital assets. If you have a social networking site, such as Facebook or LinkedIn, let your successor Trustee ones know whether you want the site maintained following your death or whether you want the site removed (some sites have specific policies regarding what happens when a person dies or is incapacitated, so make sure you check each site’s policy). If you have a collection of music or photographs, tell your successor Trustee what you want done with those.
INTELLECTUAL PROPERTY
Intellectual property assets such as copyrights, patents, trademarks and royalties that have significant value should be assigned to your Trust. This is normally accomplished by a specific assignment which should be acknowledged by a Notary. You may need to consult with an attorney who specializes in patents or copyrights prior to any transfer.
MOTOR VEHICLES/RV’s/BOATS
Automobiles, RVs, boats, etc. are items which are placed in your Trust by means of your “Assignment of Personal Property.” No Department of Motor Vehicle transfer is required.
MOBILE HOMES
Mobile homes may be placed into your Trust by contacting the same state authority that issues you the registration for the home
PERSONAL PROPERTY
Personal property such as furniture, household effects, artwork, jewelry, etc. should be transferred to the Trust. The “Assignment of Personal Property” document typically made concurrently with a Trust will assign the above-mentioned personal property into your Trust. This Assignment covers not only the property you currently own but any additional personal property acquired up to the date of death.
JOINT TENANCY
You should not hold any assets in joint tenancy, except for small checking accounts and automobiles. A joint tenancy asset will not be subject to the terms of the Trust, may frustrate your intentions and could have adverse income and estate tax consequences.
SEPARATE PROPERTY
In the event you should ever fund your Trust with any separate property, it must be specifically designated as the separate property of such spouse in order for such property to retain its character as separate property. For example, if a spouse receives an inheritance or gift in such spouse’s name, this property will be considered separate rather than community property. Unless the inheriting or gift recipient spouse wishes to change the character of the property from separate to community, the property must be specifically designated as such spouse’s separate property at the time it is transferred to the Trust. Changing the character of any property from separate to community may have significant income and estate tax consequences and could affect the division of property in the event you should dissolve the marriage. Therefore, you should obtain legal and tax advice prior to changing the character of any property from separate to community.
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