What is a Trust? POA? Living Will?

What is a Trust?  POA?  Living Will? This is the second article of a short series on basic estate planning tools and considerations. In the prior article, simple wills and probate were addressed and, now, we are pushing a little further?

A trust is a legal arrangement whereby any form of property is transferred to a trustee, who then manages the property for the beneficiaries of the trust. There are generally two types of beneficiaries to a trust. An income beneficiary who has rights to the income that the trust assets generate; and, a remainder beneficiary who has an interest in the principal assets at termination of the trust. The grantor is the person establishing the trust and the transferred property is the called the principal. Quite often, the property can remain in a trust for whatever length of time needed to meet your planning needs.

You don't have to be wealthy to consider establishing a trust. People of all income brackets can benefit from transferring property to a trust.

It's often said that there is a trust for every occasion and it is very easy to become confused by the jargon estate planning professionals use to describe them. To help you through some of this legalese, here are some basic trust types:
  • Revocable trusts can be modified while the grantor is still alive.
  • Irrevocable trusts cannot be modified while the grantor is still alive.
  • Testamentary trusts are established as part of a will and become effective at the time of the grantor's death.
  • Living trusts are established during the grantor's lifetime and become effective immediately.
While several tax advantages exist that are associated with certain kinds of trusts, here are some family minded uses for consideration:
  • You want to encourage grandchildren to attend college by setting up education trusts.
  • You would like your children to have access to their inheritance as they become mature enough to manage it responsibly, or
  • You use a trust to create incentives and opportunities for heirs without supporting an unearned lifestyle.
  • You want to protect an inexperienced heir from judgment errors by arranging an independent financial advisor and trustee.
  • You wish to keep private the contents of your estate and how your estate is being distributed.
Some Other Basic Things to Consider
There may be a time in your life when you are unable to make your own financial or healthcare decisions because of extreme illness, disability, incompetence, or even when on extended holiday. At these times, it is important that someone you trust is legally empowered to make these decisions on your behalf.

Power of attorney is a document by which you, as principal, appoint a person to act as your agent or attorney-in-fact. An agent is one who has authorization to act for another person. If you have appointed an agent by a power of attorney, acts of the agent within the authority spelled out in the power of attorney are legally binding on you, just as though you performed the acts yourself. The power of attorney can authorize the attorney-in-fact to perform a single act or a multitude of acts repeatedly. You need to pick someone you can trust!

Many people are unaware that an ordinary power of attorney is revoked, and the agent's power to act for the principal automatically stops, if the principal becomes incapacitated. However, in many states, a power of attorney with proper wording may be made "durable." This means that the power of the agent to act on the principal's behalf continues despite the principal's incapacity, whether or not a court decrees the principal to be incapacitated.

It is possible to create a durable power of attorney so that it will only go into effect when the principal is incapacitated or when some other stipulated event or condition occurs. This is ordinarily called a springing durable power of attorney.

Most states have one set of laws governing financial POAs and second set of laws governing POAs for health care decisions. Therefore, it is the common and recommended practice not to mix the two purposes into one document.

Living Wills and Medical Powers of Attorney serve different but complimentary purposes. A Living Will sets forth the individual's intentions in case of terminal illness or persistent unconsciousness. A Medical Power of Attorney authorizes an agent to make health care decisions for the principal when he or she is no longer capable of making them. Many states allow for a Living Will and a Medical Power of Attorney to be combined into one document.