If you’re a parent, you probably love to help and protect your children—you knew they’d have to fall down and go boom, but you always made sure you had Bandaids and a kiss ready. You bought them car seats and helmets, you had them vaccinated, and you taught them about the birds and the bees and how to drive responsibly. You bought them a cell phone so they could call you if they got in trouble, you paid for AAA so they wouldn’t be stranded in the middle of nowhere, and maybe you even bailed them out of jail due to a stupid mistake. You loaned (gave) them money or let them move back in when life dealt them a bad hand. We parents spend our lives showing our children how much we love them by helping and protecting them, and how we leave them an inheritance is one of the most tangible ways we can show our love once we’re gone.
There are a variety of ways that you can leave money and property to your children, and you can choose the method that you think takes your goals, including their well-being, into account.
The first option for leaving an inheritance is to make an outright gift using a Will to all children over the age of majority in your state (18 in Florida). This is often what comes to mind first when people think about planning for their children’s inheritance. This may be a fine solution for parents who have financially responsible adult children and who’ll be leaving a small amount of property and money to them.
For most people, however, leaving an outright gift using a Will is not the best option. If your children are minors, they can’t legally take control over an inheritance, so it’ll more than likely have to be held in a special account or be managed by a court-supervised guardian until they reach adulthood. But even if your children are young adults, they may not have the maturity to make good financial decisions. Further, it’s impossible to foresee what the future holds, even for mature children who normally exercise good financial judgment. They could, for example, experience a divorce or be sued and have a judgment entered against them, and their inherited money could be used to satisfy those claims. Leaving an inheritance outright provides them with absolutely no protection.
Certain types of trusts can be used to protect your children from their potential predators and creditors. They can prevent the money you have worked hard to save from going to your children’s creditors or divorcing spouse, while enabling the trustee to make distributions for your children’s benefit in accordance with your wishes.
If you make your adult child the trustee of a trust that’s established when you pass away, and he or she is also the beneficiary, the trust terms will specify the amount of discretion your child will have in making distributions to him or herself. Like an outright gift, this is often not the best choice for parents concerned about immature children or children who may have present or future money or liability problems. If your child is able to exercise control over the trust property in his or her role of trustee, then his or her creditors and predators will be able to reach those assets to satisfy their claims.
There’s also the possibility of conflict, especially if the siblings don’t get along, if there are multiple siblings acting as co-trustees, or if one sibling is the trustee and the other siblings are beneficiaries (from my experience, having one child control another child’s money is usually a recipe for the destruction of a family after a parent dies).
Some of these concerns can be addressed by a beneficiary-controlled trust. This type of trust enables a beneficiary to be a trustee of his or her own trust, but the trustee/beneficiary can only make distributions for his or her health, maintenance, education, and/or support. An independent co-trustee may be empowered to make distributions for the beneficiary’s benefit for reasons beyond health, maintenance, education, or support. Typically, the terms of this type of trust enable the beneficiary to remove and replace his or her co-trustee if the beneficiary is not satisfied with the co-trustee’s performance. Although the trustee/beneficiary has some degree of control over his or her inheritance, this type of trust prevents the money and property intended for your child from being used to satisfy the claims of creditors, divorcing spouses, and lawsuits.
One of the most common–though not necessarily the best–choices parents make regarding how to distribute money and property held by a trust is to include terms requiring or allowing distributions of principal at a certain age or at several ages. For example, a trust could require or allow one-fourth of the trust’s principal to be distributed at age 25, one-fourth at age 30, and the balance at age 35. This distribution scheme may address parents’ concerns about their children receiving a large sum of money before they have the maturity to handle it responsibly, but it may not provide as much protection against creditors as many parents would prefer—which is a concern regardless of the age of the beneficiaries. If a beneficiary can require a distribution to be made from the trust, his or her creditors or divorcing spouses can also look to it to satisfy their claims. In addition, once a distribution is made to one of your children, it is vulnerable to present or future creditors’ claims.
Many parents want to pass on their values to their children, and an incentive trust is sometimes used as a mechanism for encouraging children to achieve important goals by authorizing trust distributions based upon the beneficiaries’ achievement of certain conditions, e.g., graduating from college, or denying distributions to beneficiaries who use drugs.
Although this trust protects the money and property held in the trust from the beneficiaries’ creditors until the funds are distributed, there are some possible downsides. This type of trust has the potential to trigger resentment in the beneficiaries whose behavior you wish to influence, especially if they believe the trust’s conditions are unfair: For example, a trust that rewards high income by increasing distributions as income increases may be perceived as unfair by a beneficiary who has chosen a laudable but low-paying career such as teaching or social work.
In addition, this type of trust may not provide trustees with much flexibility in making distributions and may be difficult and expensive for trustees to administer, as substantial investigation or proof may be necessary to establish whether the trust conditions have been met by the beneficiary.
A trust providing for distributions for the beneficiaries’ “health, maintenance, education, or support” is quite common. It’s also possible to set up a trust that gives the trustee the discretion to make distributions to beneficiaries for other specific purposes, for example, starting a business or buying a house. In those circumstances, the trustee may need to evaluate, for example, whether the beneficiary is able to afford the monthly payments, home maintenance, and taxes before making a distribution to be used as a down payment on a house. Like other types of discretionary trusts, the money and property held by the trust will be protected from claims by creditors, divorcing spouses, or lawsuits.
A fully discretionary trust authorizes a trustee to make distributions to beneficiaries but does not require distributions to be made. Although this type of trust protects the money and property held in the trust from being used to satisfy claims made by the beneficiary’s creditors, some parents may be concerned that this type of trust gives the trustee too much control. Because the trustee does not have to make distributions, your children will not be able to depend upon receiving money at certain intervals or occasions, which may make financial planning more difficult. There is also the risk that unequal distributions among multiple beneficiaries could lead to family conflicts and resentment when the trustee is the only one to decide who gets money and when.
Each type of trust has its pros and cons. But don’t let the options paralyze you – there’s no one “right answer” when it comes to estate planning. Estate planning is a fluid process and can change as needed or desired. The right strategy–or combination of strategies–for your family depends upon your unique circumstances and goals. Call our office today at 941-44-5958 to set up a consultation so we can make sure your Will and/or Trust will provide for your children in the way you intend after you pass away.