Estate planning is a plan put in place while you are living and directing how you want your estate handled upon your death. It can be as narrow or broad as you like and as strict or flexible as you desire.
You begin by appointing a Trustee or Trustees, who, in certain circumstances, maybe you. If you are the Trustee of your own trust, the trust is called a “grantor trust” or a “self-settled trust.” Extreme care must be taken to locate the grantor trust in a favorable state. For example, Texas affords very limited protection to the assets in a grantor trust. However, draw a Nevada grantor trust, wait two years, and then Nevada affords most grantor trusts the full protection of Nevada state law.
When I say “protection,” I’m talking about protection of the trust’s assets from divorce, creditors, lawsuits, spendthrift children, and others who may make claims against you. Often times this is called an “Asset Protection Trust.” It may eliminate the need for probate and may protect your heirs from paying estate taxes at the time of your death. Such a trust can have a “dynastic” component that allows the life of the trust to be longer than that typically available under Texas law.
A “Dynasty” trust contains provisions for substitute trustees each time one dies or ceases to serve. It also passes your assets virtually tax-free from one generation to the next generation as you direct. A properly drawn dynasty trust will be located in a state with a long rule against perpetuities, such as Nevada. You don’t have to live in Nevada to have a grantor trust or dynasty trust located there. You stay right where you are, and the paperwork is handled by your estate planning attorney who makes sure you qualify under Nevada’s trust laws and other laws.
When a properly drawn Nevada Asset Protection Trust with dynastic properties is drawn and your assets transferred to it, subject to certain IRS maximums (Federal Estate Taxes are imposed upon estates in excess of $2 million in 2006-2008) you will have a practically untouchable trust after two years. The trust can remain in existence for up to 365 years if the laws of Nevada are followed.
During this time “in trust,” your assets are just as they were before going into the trust. The only difference is that they are owned by the trust – not by you. You have full control, use and enjoyment of the trust assets if you follow the rules. Income taxes must be paid by you if you are the Grantor on profits made by the trust, and there are some ongoing maintenance fees to trustees, banks, attorneys, and accountants. But if the numbers are large enough, these are almost inconsequential.
We prepare trusts like those described above, as well as many other types of trusts, wills, family limited partnerships, handle probate and more at my law office.
Always consult a competent attorney or tax professional, as the case may be, before taking any action in reliance on this post.