A trust is an agreement that determines how a person’s property is to be managed and distributed during his or her lifetime and also upon death.
A revocable living trust normally involves three parties:
Settlor (sometimes called a “Grantor” or “Trustor”) - This is the person who creates the trust, and usually the only person who provides funding for the trust. More than
one person can be a settlor of a trust, such as when a husband and wife join together to create a family trust.
Trustee - This is the person who holds title to the trust property and manages it according to the terms of the trust. The settlor often serves as trustee during his or her lifetime, and another person or a corporate trust company is named to serve as successor trustee after the settlor’s death or if the settlor is unable to continue serving for any reason.
Beneficiary - This is the person or entity that will receive the income or principal from the trust. This can be the settlor (and the settlor’s spouse) during his or her lifetime and the settlor’s children (or anyone else or a charity the settlor chooses to name) after the settlor’s death.
A trust is classified as a “living” trust when it is established during the settlor’s lifetime and as a “revocable” trust when the settlor has reserved the right to amend or revoke the trust during his or her lifetime.
When a trust is revocable, the settlor can revoke the trust (or even terminate it) at any time during his or her lifetime. This enables the settlor to take into account any change of circumstances such as marriage, divorce, death, disability or even a “change of mind.” It also gives the settlor the peace of mind that he can “undo” what he has done.
A revocable living trust may be considered the principal document in an estate plan, but a will should accompany a revocable living trust. This type of will, referred to as a “pour over” will, names the revocable living trust as the principal beneficiary. Thus, any property which the settlor failed to transfer to the trust during his or her lifetime is added to the trust upon the settlor’s death and distributed to (or held for the benefit of) the beneficiary according to the trust instructions. A properly funded revocable living trust avoids the cost, complication and expense of probate all together. Assets are also transferred more quickly and in private, rather than through the public process of a probate administration.
Revocable living trusts also allow for estate tax planning. While Missouri currently does not have an estate tax, the federal government does, and for clients worried about paying estate tax after their death, a revocable living trust can contain estate tax planning language to minimize estate taxes. Real estate, businesses, and other assets can continue to be actively managed by a successor trustee in central administration in much the same way as a settlor would have done before the settlor died or became incapacitated.
For example, a trustee can use trust assets to pay utility bills to keep the pipes from freezing, property maintenance expenses, and real estate taxes until real estate is sold or distributed. The trustee might work out property distribution issues, such as some beneficiaries wanting the real estate while others want money.
The successor trustee can be a trusted relative or friend, or can be a professional trustee such as a trust company or the trust department of a bank. Missouri law does not require an individual serving as successor trustee to be a Missouri resident.
Since the activities of the successor trustee are not ordinarily supervised by a court or other independent third party, the selection of the successor trustee should be carefully considered.