Law Firm of Michael W. Porter 727-327-7600
Law Firm of Michael W. Porter 727-327-7600
To assist you regarding your duties and responsibilities in the administration of your Revocable Trust Agreement, we have compiled some information covering the areas most asked about by new Trustees. The information is general in nature, and if you have more specific questions, please call our office.
1. TRANSFER OF ASSETS TO YOUR TRUST
The Trust will not be funded, i.e. will not own anything, until assets are properly transferred and/or re-registered as outlined below. ANY ASSET WHICH YOU OWN IN YOUR INDIVIDUAL NAME AND WHICH HAS NOT BEEN TRANSFERRED TO YOUR TRUST PRIOR TO YOUR DEATH WILL BE A PART OF YOUR PROBATE ESTATE AT THE TIME OF YOUR DEATH.
We prefer that you handle the funding of your Trust yourself; however, we would be happy to assist you with this for an additional charge.
a. Transferee . The title of any asset being transferred to your Trust should read as follows:
"(Your name), as Trustee of the (your name) Declaration of Trust under Agreement dated (the date on which you executed the Trust Agreement)."
Sample: "Jane Doe, as Trustee of the Jane Doe Declaration of Trust under Agreement dated June 1, 1997".
b. Real Property . In the event that you desire to transfer any real property that you own to your Trust, a deed will need to be prepared, executed and recorded. Additional legal fees will be incurred to prepare the necessary deed or deeds. There is special wording that should be used in the Deed to the Trustee, which, if used, may avoid having to record the Trust Agreement should you decide to sell or refinance your real property.
A transfer of your residence to your Trust during your lifetime may not avoid the necessity of a court proceeding at your death to clear the title to that property. Many title insurance companies have taken the position that because there are restrictions on who you can devise your "homestead" to under certain circumstances (i.e. if you are survived by a spouse or minor child), the lifetime conveyance of the property to a Revocable Trust Agreement is not sufficient to give the successor Trustee clear title after the Grantor's death. You may decide not to transfer your residence to your trust based upon Capital Gains Tax implications and/or Medicaid Planning implications. Please discuss these issues with your attorney.
If you do decide to transfer your residence to your Trust during your lifetime, you may need to reserve a Life Estate so that you will continue to be entitled to the homestead property tax exemption.
Before you decide to transfer your real property to your Trust, please contact your insurance agent to make sure that you will continue to be able to obtain insurance on said property if it is transferred to your Trust.
c. Bearer Bonds . In the event that you intend to transfer any bearer bonds that you own to your Trust you will need to list said bearer bonds on an Assignment. Additional legal fees will be incurred in the event that you require any assistance in preparing an Assignment.
d. Securities (held in certificate form) . The titling on your stock/bond certificates should be changed to read as set forth in Paragraph "1a" above. In order to make the transfer, you will need to sign a stock/bond power, and your signature must be guaranteed by an officer of your bank or your securities broker. Your original stock/bond certificate and the stock/bond power must then be submitted to the transfer agent who will then reissue the certificate in the name of your trust. Your securities broker will be able to assist you with such transfers.
e. Bank accounts . You will need to contact the various financial institutions where you have accounts to have the accounts retitled as indicated in subparagraph "1a" above. Normally there is no penalty for re-titling certificates of deposit into the name of a Revocable Trust; however you should determine this before you do so at a date prior to maturity. Also some financial institutions require that if a Certificate of Deposit is titled in two names, that the other joint owner consent to the retitling of the Certificate of Deposit into the name of your Trust.
f. Brokerage Accounts. Individually owned brokerage accounts should be transferred to your Revocable Trust, and titled as indicated in subparagraph "1a" above. Your broker should be able to assist you with this asset transfer.
g. Life Insurance and Annuities. You will need to either contact each company directly or your agent, to assist you in changing the beneficiary of any life insurance policies and annuities which you may own to the "Trustee of the (your name) Declaration of Trust under Agreement dated (the date on which you executed the Trust)."
Please make the beneficiary designations of life insurance policies and qualified plans or Individual Retirement Accounts (IRAs) in accordance with the estate plan that we developed. If you have any questions concerning this, please contact us immediately. Note that there are important estate tax and income tax implications to the determination of whether to designate your trust as a beneficiary of a life insurance policy or as a beneficiary of proceeds from a qualified retirement plan or an IRA.
The provisions of this paragraph regarding beneficiary designations of life insurance policies insuring your life do not apply to any life insurance policies which are being purchased by or
owned by other entities such as irrevocable trusts, family S corporations or family limited partnerships. We will give you separate instructions concerning life insurance policies which are to be owned by irrevocable trusts, family S corporations or family limited partnerships.
h. Trust Copies . Generally, a transfer agent will require a copy of the trust before it will transfer stocks or other securities to your Trust. It is OK to provide copies should they request them.
i. Asset List . You should maintain a record of all assets in the Trust in a small ledger or notebook, and keep it with the original copy of your Trust Agreement. Please note that such an asset list is for reference purposes only, and the listing of an asset on said list does not cause it to be transferred to your Trust.
j. IRAs and other "qualified plans. Your IRAs and other qualified plan accounts should not be retitled to the trust. If you do this, you are taking assets out of their tax deferred status, and you will have to pay the income tax and perhaps penalties as well! These types of accounts will pass outside of probate anyway, if you name beneficiaries. You should name your spouse first, then name your contingent beneficiaries next (not the Trust). Most people name their children equally as the contingent beneficiaries.
2. AFTER ACQUIRED ASSETS
All newly acquired assets or reinvestments of proceeds of trust assets that are sold or redeemed should be registered as set out in subparagraph "1a." above.
3. YOUR PERSONAL CHECKING ACCOUNT
We suggest that you keep your "operating account" (the account that you pay your bills from, buy your groceries with etc.) in your individual name and not re-title it into the name of your trust, so that you can afford yourself continuing privacy regarding your estate plan. You should keep this account small (less than $75,000.00), so that a Summary Administration probate proceeding can be used to transfer title to that asset to your Trust at your death.
If you chose to maintain a trust checking account, all interest, dividends or other trust asset income should be deposited to that account and all proceeds from sale of trust assets should be deposited to it. As Trustee, you can then write checks or make withdrawals from the Trust's bank account to yourself, individually, or to creditors for payment of your bills.
4. TAX INFORMATION
a. Tax Identification Number . If you are serving as the sole Trustee or Co-Trustee of your own Trust, there is no need to apply for a separate tax identification number; you may use your own social security number as the tax identification number for the Trust. This Trust is a "Grantor Trust."
b. Tax Returns . There is no need to prepare or file a separate tax return for the Trust while you are living and serving as Trustee or Co-Trustee due to the fact that all trust income is taxable to you as Grantor of the Revocable Trust Agreement. All trust income should be reported on the appropriate schedule on your individual income tax return (IRS Form 1040) each year.
5. UPON YOUR DEATH OR INCAPACITY
At the time of your death, or in the event that you become incapacitated at some time during your lifetime, the person or persons that you have named as Successor Trustee(s) will assume responsibility for the administration of your Trust. To assist the Successor Trustee, we have outlined below some of the Successor Trustee's duties and responsibilities.
a. Tax Identification Number . The Successor Trustee will need to obtain an Employer Identification Number from the IRS for the Trust because your social security number can no longer be used as the tax identification number for the Trust when you are no longer serving as Trustee or Co-Trustee. IRS Form SS-4 is used for making application for a tax identification number for the Trust. It is possible to apply online for a tax identification number.
b. Tax Returns . Once you are no longer serving as Trustee or Co-Trustee, the trust becomes a separate tax entity, and the Successor Trustee is required to file a Fiduciary Income Tax Return (IRS Form 1041) each year for the Trust. The Successor Trustee may also need to file Intangible Tax returns and possibly Gift and Generation Skipping Transfer Tax returns.
c. Inventory of Trust Assets . The Successor Trustee should immediately take possession of all trust assets and should prepare a detailed inventory of the assets of the Trust at the time that the Successor Trustee takes over the administration of the Trust.
d. Notification of Payors . The Successor Trustee should notify all dividend disbursing agents, banks, lessees, and others who will be making payments of interest, dividends, rent or other income to the Trust that the Successor Trustee has assumed the duties of administration of the trust pursuant to the terms of the Trust Agreement and should provide all payors the Trust's new tax identification number.
e. Investment Review. To determine if different investments will be required due to possibly different needs of the Grantor/life beneficiary in the event of incapacity, the Successor Trustee should have an investment review done by a qualified person. Also, in light of basis changes at the death of the Grantor, an investment review should be done as soon as possible after the death of the Grantor.
f. Accounting System . The Successor Trustee should establish an accounting system to properly reflect receipts and disbursements from the Trust.
g. Providing for Security and Protection of Assets . The Successor Trustee should examine all homeowners and other liability insurance coverage, and should notify all insurers of their assumption of the duties of Trustee of the Trust, to insure that they are added as additional insured on all policies. A determination should be made as to whether any additional insurance needs to be purchased or whether limits need to be increased.
6. ADDITIONAL RESPONSIBILITIES AT YOUR DEATH
As well as the responsibilities described in Section 5, above, at your death the Successor Trustees will have the following responsibilities:
a. Notification of Beneficiaries . All beneficiaries of the Trust should be notified of the Grantor's death and what matters will need to be concluded prior to termination of the Trust and distribution of the trust assets.
b. Payment of Claims and Expenses . All claims, debts, and last illness expenses of the Grantor should be reviewed carefully by the Successor Trustees and a determination made as to their validity, prior to the payment of any such claim. It is recommended that there be a probate administration of your estate, to permit the publication of a Notice of Administration which bars creditors after a three month period. Otherwise, creditors' claims will not be barred until after the expiration of two years from the date of your death.
c. Asset Appraisal . All real property which is an asset of the Trust should be appraised in order to establish the new basis for all such assets as soon after the Grantor's death as possible. Also, valuable personal property, jewelry, antiques, art work and collections should be appraised at that time to establish basis for the beneficiaries who will be receive them.
d. Evaluation of Trust Assets . A determination should be made as to the fair market value of all other assets in the Trust as of the date of your death in order to establish the basis of these assets in the hands of the beneficiaries who will receive them.
e. Federal estate tax return . Shortly after your death, the Successor Trustee should determine if a federal estate tax return will be required to be filed, and if necessary obtain the assistance of a competent professional to prepare the return.
f. Funding of Continuing Trusts . The Successor Trustees will be responsible for funding any trusts which are to continue after your death, with appropriate assets after consultation with competent advisers.
g. Distribution of Assets . The Successor Trustees will be responsible for distributing the assets of your trust at the time of the termination of the Trust, pursuant to the terms of the Trust agreement. This may require the transferring of real property by deeds, re-registering securities, and retitling bank accounts. The termination of the Trust and distribution of the assets should be coordinated with the payment of costs, debts, expenses and death taxes that may be payable as a result of your death. The Trustee could become personally liable if the Trustee distributes assets prior to satisfying all such debts, expenses and taxes.
h. Probate . As indicated in Section 1 above, if assets are owned in your individual name at the time of your death, a probate administration to transfer title to the assets will be required. Also, a determination of homestead proceeding, as referenced in subparagraph "1b" above, may also be necessary to clear title to your homestead real property at the time of your death.
7. ASSISTANCE FOR SUCCESSOR TRUSTEES
If desired by your Successor Trustees, the law firm of MICHAEL W. PORTER, P.A., can assist with the following matters:
a. Inventorying and securing values and appraisals for trust assets.
b. Assisting with bookkeeping and record keeping through use of our legal assistants.
c. Assisting with bill paying, by setting up a tickler system for payment of monthly bills, and keeping the checkbook, although the Successor Trustee must sign all of the checks.
d. Coordinating with a CPA in the preparation of Federal Estate Tax return (IRS Form 706) Federal Gift Tax Returns (IRS Form 709) and Florida Intangible Tax Returns.
e. Gathering the necessary information that will be required by the Trust's CPA to prepare your personal income tax returns (IRS Form 1040) and the Fiduciary Income Tax returns (IRS Form 1041) for the Successor Trustees.
f. Providing information regarding support services in the community that may be of use to the Successor Trustee in making necessary care and assistance arrangements for you, in the event you become incapacitated.