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Biggest Mistakes Parents Make When Setting Up a Trust Fund

Posted on May 12, 2023


Trust funds in New York are highly regarded as versatile financial tools that individuals, families, and organizations utilize for sound financial management and strategic long-term planning. With their inherent flexibility, trust funds offer many benefits, including asset protection, wealth preservation, tax optimization, and the ability to support philanthropic endeavors. In New York’s dynamic financial landscape, trusts stand as an essential mechanism for effectively managing wealth and achieving various financial objectives.

However, creating a trust is not a one-and-done scenario. Getting the help of an experienced Long Island trusts attorney can be beneficial in ensuring that your trust is aligned with your estate planning goals. At Schlessel Law, PLLC, skilled Long Island estate planning lawyer Seth Schlessel and his team of legal professionals can conduct a comprehensive evaluation of your situation and help you navigate the process of creating a trust. We can also help evaluate which type of trust such as an irrevocable trust or a life estate may be applicable in your case. To learn more about how we can help you, contact us today at (516) 574-9630.

What is a Trust Fund?

A trust fund is a legal and financial arrangement that allows a third party or trustee to manage and hold assets on behalf of one or more beneficiaries. The person or entity that creates the trust is called the grantor or settlor. The purpose of a trust fund is to provide a structured means of managing and distributing assets for the benefit of the named beneficiaries, according to the terms set by the grantor.

Assets that can be placed in a trust fund include, but are not limited to, cash, stocks, bonds, real estate, and life insurance policies. Trust funds can be customized to meet specific needs and goals, such as providing for the education of children, supporting a family member with special needs, or funding a charitable organization.

Types of Trust Funds

There are various types of trust funds, each offering unique features and benefits depending on the grantor’s objectives. Some common types of trust funds include:

Revocable Trusts

A revocable trust, also known as a living trust, is an arrangement in which the grantor retains the right to alter, amend or terminate the trust during their lifetime. This type of trust provides flexibility for the grantor, as they can make changes according to their needs and circumstances. However, revocable trusts do not offer the same level of asset protection and tax advantages as irrevocable trusts.

Irrevocable Trusts

An irrevocable trust is one in which the grantor relinquishes control and rights to the assets placed in the trust, and the trust cannot be modified or terminated without the permission of the beneficiaries. Irrevocable trusts offer significant asset protection and tax advantages since the assets are no longer considered part of the grantor’s estate. This type of trust can be beneficial in reducing estate taxes and safeguarding assets from potential creditors and lawsuits.

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Living Trusts

A living trust, also known as an inter vivos trust, is established during the grantor’s lifetime and may be either revocable or irrevocable. The primary benefits of a living trust include the avoidance of probate, privacy of the trust’s terms, and the ability to manage and distribute assets according to the grantor’s wishes in the event of incapacity.

Testamentary Trusts

A testamentary trust, also referred to as a will trust, is created within the grantor’s will to take effect after their death. This type of trust can help provide for minor children, ensuring that assets are distributed according to the grantor’s wishes, and offering asset protection for beneficiaries who may not be responsible enough to manage their inheritance.

Benefits of Setting Up a Trust Fund

Trust funds offer numerous advantages, including:

  • Asset protection: Trust funds can safeguard assets from litigation, creditors, and spendthrift heirs.
  • Estate tax reduction: By removing assets from the grantor’s estate, trust funds can help minimize estate taxes.
  • Avoiding probate: Trust funds enable a timely and private transfer of assets to beneficiaries, bypassing the often lengthy and public probate process.
  • Control and flexibility: Trusts can be tailored to meet specific needs and objectives, stipulating when, how, and under what conditions assets are distributed to beneficiaries.
  • Support for beneficiaries: A trust fund can provide for the well-being of family members, including education and healthcare expenses, as well as support for charitable causes.

New York State Trust Law Basics

New York trust law is governed by the state’s Consolidated Laws, including the Estates, Powers, and Trusts Law (EPTL) and the Surrogate’s Court Procedure Act (SCPA). Key factors to consider in the establishment and administration of trust funds in New York include:

  • Formalities: Creating a valid trust in New York requires a written document containing a clear declaration of trust, identification of beneficiaries, and specific provisions for the management and distribution of assets.
  • Trustee appointment: New York law requires the appointment of a trustee, who must be at least 18 years old and capable of fulfilling the legal duties and responsibilities that come with managing a trust.
  • Statute of limitations: New York trust law includes various deadlines for contesting trusts, filing claims against trust assets, and disputing trustee actions.
  • Trust accounting and reporting: New York trustees must maintain accurate records and provide periodic account statements to beneficiaries regarding the trust’s assets and transactions.

Before establishing a trust fund in New York, it is essential to consult with an experienced estate planning attorney to ensure compliance with state laws and the creation of a trust that meets your specific needs and objectives.

Common Mistakes Made by Parents

When parents decide to establish a trust for their child or children, they often have the best of intentions. A trust can provide financial stability and a safeguard for the future. However, there are several common mistakes parents make when setting up trusts that can complicate matters and potentially cause financial troubles to the intended beneficiary. 

Not Properly Assessing the Purpose of the Trust

One of the most important aspects of creating a trust is determining its purpose. Parents need to decide what they want the trust to achieve and how it will benefit their child or children. It’s essential to have a clear understanding of the trust’s objectives, whether it’s to provide for education expenses, cover living expenses, or pass along assets to future generations.

Parents should also consider the child’s age, needs, and potential future financial circumstances when outlining the trust’s purpose. By thoroughly assessing these factors, parents can establish a trust that truly meets their child’s needs, rather than creating a restrictive or inefficient trust arrangement.

Choosing the Wrong Type of Trust

There are numerous types of trusts, each designed to serve specific purposes and offer various benefits. Some of the most common trust types include revocable and irrevocable trusts, living trusts, and testamentary trusts. Parents should consult with an experienced attorney or financial advisor to help determine the ideal type of trust for their child’s needs.

Choosing the wrong type of trust can result in unnecessary expenses or undesirable consequences for the beneficiary. For example, some trusts are subject to higher taxes or may not provide the intended level of asset protection. Parents should take the time to research and understand the different types of trusts available to them before making a decision.

Selecting an Inappropriate Trustee

Selecting the right trustee is critical to the successful administration of a trust. Trustees have significant responsibilities and must act in the best interests of the trust’s beneficiaries. Unfortunately, some parents choose a trustee based on personal relationships or convenience rather than their ability to effectively manage the trust.

When selecting a trustee, parents should consider their potential appointee’s financial acumen, experience, and willingness to take on the role’s responsibilities. In some cases, it may be prudent to appoint a professional trustee, such as a bank or trust company, to provide added experience and impartiality in administering the trust.

Failing to Fund the Trust

A trust is only beneficial if it is properly funded. Parents must ensure that they transfer the appropriate assets into the trust, either during their lifetime or upon their death. Without proper funding, the trust can’t fulfill its intended purpose, and the beneficiary may not receive the intended financial support.

To avoid this issue, parents should work with experienced professionals to properly title assets in the trust’s name and make provisions in their estate plan for funding the trust in the event of their death.

Failing to Keep the Trust Updated

A trust is not a static document. As circumstances and laws change, it’s important for parents to review and update the trust to ensure it continues to meet the beneficiary’s needs and remains compliant with current regulations.

Parents should periodically review their trust with a qualified attorney, particularly after significant life events such as marriage, divorce, or the birth of additional children. Maintaining an up-to-date trust can help avoid disputes or complications that may arise from outdated or unclear provisions.

Inadequately Planning for Taxes and Expenses

Taxes and expenses related to trusts can be complex and may impact the trust’s ability to fulfill its intended purpose. Parents should work with an attorney or financial advisor to ensure that they have properly accounted for potential taxes, fees, and other expenses associated with the trust.

This may include planning for the payment of estate taxes, considering the tax implications of distributing trust assets, or ensuring that the trust has sufficient funds to cover ongoing expenses and fees. Parents should also understand that trusts are subject to different tax rules and rates than individuals or corporations, so careful planning and professional guidance are essential in navigating these issues.

Common Mistakes Made by Parents Implications Recommendations
Not Properly Assessing the Purpose of the Trust Creating a restrictive or inefficient trust arrangement Thoroughly assess the child’s needs, age, and potential future financial circumstances
Choosing the Wrong Type of Trust Unnecessary expenses or undesirable consequences Consult with an experienced attorney or financial advisor to determine the ideal type of trust
Selecting an Inappropriate Trustee Ineffective management of the trust Consider appointing a professional trustee with financial acumen and experience
Failing to Fund the Trust Trust cannot fulfill its intended purpose Work with professionals to properly transfer assets into the trust and plan for funding in the future
Failing to Keep the Trust Updated Disputes or complications from outdated provisions Periodically review and update the trust with an attorney, especially after significant life events
Inadequately Planning for Taxes and Expenses Inability to fulfill the trust’s purpose Work with an attorney or financial advisor to account for potential taxes, fees, and expenses

Effective Trust Fund Planning for Parents

Trust funds can be a powerful tool for parents to ensure their children’s financial future, providing ongoing financial support, education, healthcare, and other important aspects of a well-rounded life. Effective trust fund planning includes several key components: identifying long-term goals for the trust, seeking professional assistance, allocating assets to fund the trust, periodically reviewing and updating the trust, and educating beneficiaries about trust fund responsibilities.

Identifying Long-term Goals for the Trust Fund

Before establishing a trust fund, parents must clarify their objectives for the trust. What are the desired outcomes? Are there specific educational, financial, or personal milestones to be achieved? Identifying long-term goals for the trust fund will help parents design the trust in a way that aligns with their ultimate wishes for their children.

To provide a solid foundation for trust fund planning, parents should consider a few factors. First, estimate the total amount needed to fund the trust and the timeline required for it to mature. Then, establish any restrictions or limitations to be placed on the trust, such as disbursements only for educational expenses or investments in sustainable businesses. Finally, determine the types of assets to be included in the trust and the order in which they will be liquidated or distributed.

Seeking Professional Assistance

For many parents, trust fund planning can be a complex process. It is essential to seek assistance from professionals with expertise in this area. Consider working with financial advisors, estate planning attorneys, and tax professionals who specialize in trust funds.

Financial advisors can provide guidance on the types of investments and strategies to use for generating income and preserving capital within the trust. Claims too not guaranteed. They can also suggest the best ways to fund the trust, such as using life insurance policies or setting up a family-limited partnership.

Estate planning attorneys can help parents navigate the legal intricacies of trust fund creation, administration, and distribution. They will work with parents to draft the necessary documents, including the trust agreement, to clearly outline trust terms and conditions.

Tax professionals are essential in understanding the complex tax implications of trust fund creation and distribution. They will help minimize any tax burden associated with the trust and ensure compliance with all relevant tax regulations.

Allocating Assets to Fund the Trust

Parents should consider the types of assets they can use to fund the trust. Some options include cash, stocks, bonds, real estate, life insurance policies, retirement accounts, and business interests. The choice of assets will depend on various factors, such as the parents’ financial situation, the intended purpose of the trust, and potential tax implications.

It is important to carefully evaluate the assets’ current value and future growth potential when allocating them to the trust. This is where the assistance of a financial advisor or a trusts attorney can be invaluable. By diversifying the trust’s assets, parents can minimize risk and create a more balanced investment strategy.

Periodically Reviewing and Updating the Trust

As circumstances change over time, parents should review and update the trust to reflect their current situation and intentions. Major life events like marriage, divorce, the birth of additional children, or the death of a family member can necessitate modifications to the trust.

Periodic reviews should also assess the trust’s investment performance and align it with long-term objectives. Evaluating the trust’s asset allocation and making adjustments as needed may be key to ensuring ongoing trust fund success.

Educating Beneficiaries about Trust Fund Responsibilities

Finally, parents must educate their children about the responsibilities that come with being trust fund beneficiaries. Providing a solid understanding of trust fund management and the purpose behind the trust can help prevent potential disputes and ensure the responsible use of the funds.

Open and ongoing communication with beneficiaries is essential for the successful functioning of the trust. Educate young beneficiaries about budgeting, financial planning, and investment strategies as they grow older to prepare them for the responsibility of managing their trust fund.

In conclusion, effective trust fund planning is a vital aspect of securing a financially stable future for your children. By following these steps and working with the right professionals, parents can create a trust fund plan that delivers on their long-term objectives and expectations.

Tips for Avoiding Common Trust Fund Mistakes

Establishing a trust can be an effective way to transfer wealth and protect your financial legacy. However, mistakes can lead to complications and potential disputes among beneficiaries. To ensure the smooth administration of a trust, consider these tips for avoiding common trust fund mistakes.

Creating a Well-defined Trust Distribution Plan

Clearly defining your trust distribution plan is essential. Ambiguity in trust instructions can lead to misunderstandings and disputes among beneficiaries, increasing the likelihood of a legal challenge. To prevent this, ensure that specific details about the trust assets are included in the trust document. Be very clear about the conditions under which assets or income will be distributed to beneficiaries. For example, you might specify that a beneficiary must reach a certain age, complete a specific educational milestone, or undergo substance abuse counseling before receiving their inheritance.

Additionally, it’s essential to balance flexibility with control. A well-drafted trust should allow for amendments or adjustments, as needed, while still maintaining the grantor’s original intent. This balance can be achieved by incorporating mechanisms like a trust protector, who can modify the trust as circumstances change, or by using discretionary trusts that give the trustee decision-making power regarding distributions.

Attending to Required Legal Formalities

Trusts must be established and executed according to applicable laws and regulations to be valid and legally enforceable. This means that you should seek the advice of a qualified New York estate planning attorney to ensure the trust document is accurate and reliable. Formally executing the trust typically includes having the document notarized and witnessed by independent third parties.

Furthermore, it is essential to fund the trust correctly by transferring assets (like real estate or investment accounts) into the trust’s name. Properly funding the trust ensures that the assets will be protected and managed according to the trust’s terms.

Considering the Beneficiaries’ Needs and Circumstances

When designing a trust, be sure to consider the unique needs and circumstances of each beneficiary. One size does not fit all, so it may be wise to develop customized trust provisions tailored to each beneficiary’s situation. This might include special provisions for beneficiaries with disabilities, addiction issues, or considerable financial inheritance.

It may also be wise to prepare a letter of intent outlining your wishes, values, and vision for the trust. This document can serve as a valuable guide for the trustee and provides context for the trust’s goals and purpose.

Real-life Trust Fund Mistakes and Their Consequences

Unfortunately, not all trust fund setups end successfully. The following examples illustrate some common mistakes and the resultant negative consequences.

Breaches of Fiduciary Duty

Fiduciary duty is a legal obligation for a trustee to act in the best interests of the trust’s beneficiaries. However, there have been cases where trustees have acted for their personal benefit at the expense of the beneficiaries. For instance, a trustee may mismanage trust assets, fail to make timely distributions, or make unauthorized expenses. Such breaches of fiduciary duty can significantly undermine the integrity and performance of the trust fund and often lead to legal disputes.

Taxation Pitfalls

Inadequate planning for tax implications is another common mistake in trust fund setups. For example, if a trust is not structured properly, it may be subject to high tax rates, which can ultimately reduce the funds available for beneficiaries. Additionally, failure to file appropriate tax returns in accordance with taxation laws can result in severe penalties and possibly litigation.

Conflict and Litigation among Beneficiaries

Unclear or ambiguous trust terms can lead to conflicts among beneficiaries, who may disagree on the interpretation of the trust provisions. Such conflicts can result in costly and time-consuming litigation, which could hurt the trust’s value and the relationships among family members.

Working with an Experienced Long Island Trusts Attorney

Long Island trusts attorneys who possess extensive knowledge and experience in trust fund matters emphasize the critical role of involving experienced legal and financial professionals throughout the process. These professionals understand that thorough planning, precise drafting, and ongoing maintenance are vital for the establishment of a successful trust fund. By proactively identifying and addressing potential issues early on, both grantors and beneficiaries can benefit from a well-structured and effectively managed trust fund.

The complexities of trust law and the ever-evolving legal landscape require the assistance of skilled Long Island trusts attorneys. These professionals possess in-depth familiarity with New York state laws and regulations concerning trusts, enabling them to navigate the intricate legal framework with confidence. By working closely with a knowledgeable attorney, individuals and families can ensure that their trust fund is established in full compliance with applicable laws and maximizes its intended benefits.

Additionally, experienced Long Island trusts attorneys bring practical insights to the table. They possess a deep understanding of the financial intricacies involved in trust fund management, including considerations related to taxes, investments, and asset protection. This comprehensive understanding allows them to customize the trust fund to align with the specific needs and goals of the grantor and beneficiaries.

One of the primary advantages of involving a skilled trusts attorney is their ability to anticipate and mitigate potential challenges. Through a thorough analysis of the grantor’s financial situation, family dynamics, and long-term objectives, the attorney can identify any possible obstacles that may arise during the trust’s lifespan. They can incorporate safeguards and provisions within the trust document to protect the interests of the beneficiaries and ensure the grantor’s wishes are faithfully fulfilled.

Moreover, an experienced Long Island trusts attorney provides ongoing guidance and support throughout the life of the trust. They assist with the administration of the trust, including tasks such as asset management, reporting, and compliance with legal requirements. This ongoing involvement ensures that the trust remains aligned with changing circumstances, regulations, and the evolving needs of the beneficiaries.

At Schlessel Law, PLLC, we leverage our combined experience to provide practical legal solutions to parents seeking to safeguard their children’s future through the establishment of trust funds. We believe that trust funds are not only for the wealthy but also for those who want to provide financial security to their loved ones. We take the time to conduct a financial evaluation of your estate planning goals, introduce alternative options, and assist you in making an informed decision. Contact us today to schedule a consultation at (516) 574-9630.

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