Which Trust May Be Right for You?

MARK RIEPE: The COVID era has generated many interesting statistics. Many are depressing, some inspiring, and others just kind of strange. I’m not really a pet person so some of the statistics about pets fall into the strange category for me. For example, there’s been a surge in pet adoptions. Apparently, when you’re stuck at home, that’s a great time to get a new pet.

According to the American Society for the Prevention of Cruelty to Animals, 23 million U.S. households got a cat or dog after the start of the pandemic—that’s about one in five households.¹

I’m Mark Riepe, and this is Financial Decoder, an original podcast from Charles Schwab. It’s a show about financial decisions and the cognitive and emotional biases that can cloud our judgment.

I’m going to get back to pets in a second, but before I do, I wanted to mention that on this episode, we’re looking at trusts. The world of trusts is complicated. There are a lot of different kinds, built for different purposes and circumstances. How do you choose which one is right for you?

Before we can answer that question, we must confront a decision-making bias called choice overload. This happens when there are so many choices that we get overwhelmed.

To cope, we often decide to avoid the choice and simply do nothing. In other words, our decision is to not make a decision.

If you listened to our most recent episode on charitable giving, we touched on choice overload there. If you’re a listener to the Choiceology podcast, there’s also an episode that provides more technical details of this phenomenon with Barry Schwartz as the guest.

There are other biases associated with decision like this that, at their root, are driven by choice complexity. We see a lot of choices, and the choices are hard to make, and to help us out we start to make short cuts that, in a subtle way, move us away from the choice that is probably the most optimal.

One way around both these obstacles is to create a structured process for making these complex decisions with lots of choices by breaking the big decision down into smaller, bite-sized decisions where each of those decisions is, hopefully, easier to make.

This is where pets come in. It’s a nice, if somewhat irreverent, case study for illustrating how this could be done. Let’s start by creating a sort of decision tree to quickly prune down the list of candidates. For example: “Do you want a pet that lives on land or in water?”

Let’s say land. So fish are out.

Another question could be “Will the pet be living in a barn or in the house?” Let’s go with house. No ponies for the kids this year.

The next question could be “Feathers or fur?”

This is an important question, as there are 10 million households with birds as pets.²

If you select fur, then the next question could be “Vegetarian or non-vegetarian?” If you select non-vegetarian, that’s just fine and gets us down to cats and dogs.

Next up is “Does it purr or bark?” We’ll say bark.

I think you can see where this is going. The point of this exercise is to get yourself to break the problem into smaller decisions so you can some eliminate choices very easily. This allows you to get yourself unstuck and to at least get the decision-making process moving. It also saves you some mental bandwidth so that more of your energy can be devoted to subsequent decisions that aren’t so clear cut.

Our pet example was a little goofy, but this same type of framework can work with trusts.

Deciding which trust or trusts is best for your situation can be overwhelming because there are so many to choose from. There are revocable, irrevocable, living, testamentary, charitable remainder, qualified domestic, special needs—the list goes on and on.

To help us sort this out, I’m going to speak with Austin Jarvis. Austin is a director of estate, trust, and high-net-worth tax advice at the Schwab Center for Financial Research. He’s worked as an advanced-planning attorney and in the estate and gift tax section of the Internal Revenue Service.

Austin, thanks for being here today.

AUSTIN JARVIS: Mark, it’s a pleasure to speak with you today.

MARK: Austin, we’ve got a lot of people who are starting to contemplate the fact that, let’s face it, their life is going to end at some point. And not surprisingly, that brings along with it a lot of emotional issues. And I don’t want to come across as kind of crass or unfeeling, but, you know, some of those concerns really come down to finances. So what are the primary financial concerns that people have when it comes to these kind of end-of-life discussions?

AUSTIN: That’s an excellent question. Typically, people who are making end-of-life decisions, typically, stay around these topics. Number one, “Who will receive my assets when I pass?” It’s a financial decision. “I have something while I’m alive; who’s going to get it next?” Number two is going to be, “Do I want to give my assets outright, or do I want to have some control once I’m gone?” Think about it for, you know, just people in your life. There are people who are financially literate that pay their bills on time, that don’t have any issues, and you would have no problem passing those assets onto them. However, for other people you would say, “Man, it would really be nice if someone was controlling that so that those assets don’t get wasted.” And for younger adults, one of the biggest things that they have on their mind is, “Who will take care of my minor children if I die prematurely?” So those are some of the concerns that we have when people are making end-of-life decisions.

MARK: That’s a great list. We’re not going to be able to cover all of those topics on this episode. But as you were running through that list, it seems to me that at least some of those issues, some of those problems, can be solved or at least mitigated with some form of a trust—do I have that right?

AUSTIN: Absolutely. So in my world, trusts provide incredible flexibility when creating an estate plan. Typically, I tell people with very few exceptions, if you have an estate-planning goal, there is a trust that can help.

MARK: So before we get into some of the details, and there’s a lot of different types of these trust, but I think a point of confusion is, you know, at that most basic, at that most fundamental level, what is a trust? What are you … what exactly are you doing when you sign that document and create a trust?

AUSTIN: All right, Mark, you’re taking me back to Law School 101 for my trust course. But trust, in the legal sense, is, basically, where you’ve created a legal document and you’ve transferred property to the trustee. So the trustee is someone who has basically got a fiduciary obligation to follow the terms of the trust for the benefit of certain beneficiaries. So, again, just to recap that, you’re transferring assets to a trustee, who is basically given a rule book by which they make decisions, and they’re there to take those assets and manage them for the benefit of named beneficiaries.

MARK: So that’s pretty clear. Let’s talk about the most common form of a trust that we see in the U.S., and that’s the revocable living trust. Tell me a little bit more about why this trust exists, what problems is it solving for people, and who does it makes the most sense for.

AUSTIN: Sure, absolutely. So a revocable living trust is most commonly used as a will substitute for two primary reasons. First, the assets owned by a revocable living trust do not go through the probate process. So let’s take a step back because I just mentioned probate. So what is probate? Probate is the legal process where your assets of your personal estate are gathered and distributed according to your will. And depending on which state you live in, when you pass away, the probate process can be fairly simple, like it is in Texas—we actually have a name for it in Texas, called the Texas two-step—or it can be lengthy with some considerable costs.

I’d be remiss if I didn’t mention the fact that the probate process becomes a part of the public record. So anyone who is interested to find out what you owned and who it went to, if they wanted to go down to the courthouse after the probate proceeding, they could find out all that information. So with that, the second reason why a lot of people utilize a revocable living trust is for privacy concerns. They don’t want everybody to know what they owned when they passed away and who ended up with it once they passed away.

So those are the two main components of why a lot of people gravitate towards a revocable living trust. One, you don’t have to go through the probate process, and by doing so, your matters, especially your financial matters and transfers, are kept secret.

MARK: So faster, less bureaucracy, privacy, all sounds great. Are there any other advantages to a revocable living trust that people need to know about before that estate is ready to be passed on?

AUSTIN: Absolutely. So one of the most overlooked advantages of a revocable living trust is the ability to help with incapacity planning. So think about it: If you were to get into a car wreck and were in a coma for 30 days, who is going to pay the bills that are routinely monitored? If you’ve got auto-pay, that’s great. But if you have a fairly substantial estate, there’s a lot of management that goes on. So a revocable living trust could be set up to say, if the grantor, if you become incapacitated, there’s going to be a named successor trustee, someone that you trust that you’ve already said, “Hey, I trust this person to manage my financial affairs.” And when that triggering event occurs, when you’re declared incapacitated, your trustee steps in and says, “I’m going to manage these assets until the incapacity period has passed.”

MARK: So that’s a pretty big decision. How do you think about naming that trustee? Because in the example you just gave, that’s a pretty weighty responsibility.

AUSTIN: It absolutely is. So a successor trustee, one, it is a legal responsibility. They have a fiduciary obligation. So that means that the successor trustee, if they don’t manage things correctly, and it can be proven, that person can be held personally liable for any mismanagement of those assets, and there could be substantial damages. But, normally, you would look at it as if you would someone taking a power of attorney. So if you have a power of attorney already, if that person is trustworthy, and you say, “Hey, yeah, I absolutely trust this person. I know that they would take care of me,” then that’s going to be a person that you might consider naming as a successor trustee. And there’s multiple people. It could be a spouse. It could be an adult child who you have faith with. It could be an advisor that you work closely with, a CPA or attorney, or even a corporate trustee that says, “Hey, we are going to do everything by the book.” Now, there are some costs associated with that, but a lot of people have peace of mind by saying, “Hey, I know that that corporate trustee, if something happens, they’re going to step in, and they’re going to do the right thing, 100% by the book.”

MARK: All right. So we’ve got speed, less bureaucracy, privacy, incapacity planning. Those are the advantages of the revocable living trust. Let’s talk a little bit about some of the downsides. What are some of the risks involved with setting up this structure?

AUSTIN: So like most things in life, there are going to be some tradeoffs. You get all those benefits of the revocable living trust, but there’s going to be some disadvantages, and the main one is going to be the upfront cost of setting that up. So even if you go to an estate-planning attorney, and you say, “Hey, I want to avoid probate, keep things private. I want the incapacity protection this provides.” They’re going to say, “Yes, we can create a revocable living trust. Now we’re going to have to pour in your assets into that trust.” So depending on what you’re actually transferring over, some of those property transfers can have fees associated with them. It could take time to do that. And then if you go to the estate-planning attorney and you set that up, they’re still going to recommend that you have what’s known as a pour-over will in conjunction with revocable living trust. What a pour-over will is, it says, “Anything that I own when I die that is not owned by the trust is going to be captured in that will.” And then once the probate proceeding is over, all those assets get poured over into the revocable living trust to be distributed according to your will. So you’ve got upfront legal expenses, because you’ve got to create the trust and the pour-over will, and then you’ve also got some expenses around transferring assets, and sometimes there’s fees associated with that.

MARK: What about guardianship provisions for people who have minor children? How does that play into this?

AUSTIN: Absolutely. It’s a great question. So the pour-over will is where your guardianship provisions are going to be held. So that’s another reason why even if you have a revocable living trust, the pour-over will is going to designate who you want to take care of your minor children if something should happen to you.

MARK: Austin, when you talked about … earlier about, you know, that most basic and fundamental level, what is a trust, we talked about, you know, transferring ownership from the grantor or you to this trustee, and I’m sure a lot of listeners, the first thing that went through their mind was, “Oh, no, I don’t want to give up control.” How much of that is an issue with a revocable living trust?

AUSTIN: It’s really not a concern because most of the time when you go to an estate-planning attorney and you draft the trust, you’re going to name yourself as the trustee. So you’re managing your own assets for your own benefit during your life. That’s the … you know, 90% of the time that’s what’s going to happen.

So control, think about it this way: The word “revocable” in “revocable living trust” basically means that you can alter, amend, or terminate that trust at any point in time and bring those assets back into your estate, just as if you were to own it yourself. Split decision, you could make that happen if you wanted to. So you do have full access and control over all of the assets inside a revocable living trust just as if you were to own it. You’re just basically placing it into a legal structure that avoids probate.

And to just add a little bit of clarity to this, a lot of people might know that there are certain trusts out there that can provide asset protection from creditors. Namely, those are irrevocable trusts, meaning they cannot be changed, and those trusts are afforded some asset protection. Whereas a revocable living trust, those assets, if you were ever to be sued, the creditors could go after that because you have full access and control over the assets in a revocable living trust.

MARK: So that’s a nice segue, I think, to the next set of trusts that we should talk about, trusts that really help people protect their assets and transfer their wealth to their beneficiaries. So let’s talk about some different examples of those.

Why don’t we start off with the credit shelter trust? What’s that all about?

AUSTIN: So a credit shelter trust is going to be for people who have very large estates that might be subject to an estate tax. So take a married couple. When the first spouse passes away, you have a lifetime exemption—currently right now, basically a little over $11 million—that you can basically shield from estate taxes. Now, what a credit shelter trust does is say, “OK, we’re going to put all of the assets that make up that lifetime exemption, the $11 million, we’re going to put that into a trust.” And that is forever going to be shielded from estate taxes because you’re utilizing your exemption on those assets. Now, typically you want to put the most highly appreciating assets into that trust because all future appreciation and income generated from those assets are also exempt from estate taxes. So that’s a really good benefit. So if you have a spouse that dies prematurely, early, and you lock that in, all that future income and gain inside that trust will never be touched by the estate tax.

MARK: I’ve got a couple of other trusts I want to go through here that have some strange acronyms associated with them. The first one is the ILIT, I-L-I-T. We’ve gotten a lot of questions about that here at Schwab. What’s that all about?

AUSTIN: So an ILIT is short for irrevocable life insurance trust. So, typically, what happens is if you did not have an ILIT, but you owned life insurance, the death benefit on that life insurance is going to be added to your gross taxable estate. So if you had life insurance on your life and you passed away, that death benefit gets included in your estate. So think about for families that are subject to estate taxes, whether state or federal, you could have an issue by saying, “Well, I’ve got this life insurance policy that I own that’s meant to provide myself some liquidity for estate taxes.” But then it becomes a part of your taxable estate and that you’re basically exacerbating that estate tax liability. An ILIT removes the death benefit from the taxable estate by basically saying, “Hey, I’m going to transfer in this life insurance policy to the trust, and by doing so, I’m going to remove that death benefit from the gross taxable estate.”

Now, one quick legal caveat here is the fact that if you gift the policy into the trust. If you say, “I have a life insurance policy, and I’m gifting it into the trust,” then you have to basically live three additional years before that death benefit will be removed from your estate. This is what’s known as the three-year claw back period. Now, a good estate-planning attorney might say, “Hey, well, instead of gifting it, why don’t you sell it to the trust instead?” And by doing it that way, you can avoid that three-year look back.

But, traditionally, an ILIT is used for estates that are illiquid, that they might have heavy concentrations in a family-owned business, farm, real estate holdings, things that are not readily convertible to cash quickly, because what happens is within nine months of the date of death of the second to die of a married couple or for a single person, you have to pay in good faith the estate tax. Now, think about that. If you’re trying to sell a business or real estate, and you’ve only got nine months in order to get that check into the hands of the IRS, you need that liquidity. So having that irrevocable life insurance trust with the life insurance policy in it, that gives your estate a source of liquidity to draw from if the need arises for estate tax purposes.

MARK: That and probably the reason we’ve gotten a lot of questions recently about this is because of the uncertainty about what the size of that estate tax exemption is going to be. Is that right?

AUSTIN: Absolutely. What’s happening in Congress right now is anyone’s guess. We had some very strict proposals coming down on the estate tax, lowering the exemption, including grantor trusts in the taxable estate, lots of changes to some different rules. All of that seems to have been pulled back from the current version of the bill. But just as we’ve learned in the past weeks, what can be pulled out can be put right back in. And so we don’t want to make any, you know, determinations of what Congress is going to do. But what we can say for certain right now is that if Congress does nothing, the doubled estate tax exemption will fall back to what it was on January 1, 2026. So you’re talking about $5 million in 2010 dollars adjusted for inflation. So if that happens, January 1, 2026, you’re looking at estate tax exemption of probably somewhere between $6 to $7 million per person versus the $11 million we currently enjoy.

So there’s going to be some people out there right now who are doing well, who think, “Oh, I’m between $10 and $20 million between me and my spouse. We don’t have to worry about the federal estate tax.” Well, just like anything, when that sunset provision kicks in, it could be a real shock to some people that all of a sudden they might have, you know, a six- or seven-figure federal estate tax due when they passed.

MARK: All right. Final trust with an interesting acronym. And that is the SLAT, the S-L-A-T. Give us a definition of that and when does it make sense.

AUSTIN: So a SLAT is a spousal lifetime access trust. And I’ll say that again, spousal lifetime access trust. And what I like to say is this is kind of a “have your cake and eat it too” trust. For those people that say, “I would really like to, you know, lock in some of my exemption, utilize it now while we’ve got this really high exemption that could potentially lower in the future, but I don’t want to give up access to those assets if I need it.” So a spousal lifetime access trust lets a spouse create a trust for the benefit of the other spouse. So they say, “Hey, I’ve got separate property that I’m transferring into a trust for the benefit of my spouse, and my spouse at any point in time can receive income or principal distributions from that trust to help them if it’s allowed under the trust document.” Well, in a married relationship, normally if one spouse is receiving some income or principal, and they’re buying a car or whatever it might be with that money received from the trust, you could get an indirect benefit from the donor spouse basically saying, “Hey, well, my spouse just got a trust distribution, and now I’m riding along in the car that they bought with that distribution.” So they have this indirect benefit by basically saying, “Hey, whatever my spouse receives, I’m going to somewhat get a benefit from that.”

Now, just a word of caution here. There’s what’s known as a reciprocal trust doctrine, so that if both spouses create trusts for each other, if the trusts are basically identical, then you could basically say that for federal purposes, those trusts will be disregarded and all those assets flow back into your estate. So it’s very important that for anybody who thinks, “Oh, a SLAT sounds like a great idea for me,” that you talk with an experienced estate-planning attorney to make sure that you don’t fall victim to that trust doctrine that I just talked about. And so that you can take advantage of locking in the higher exemption for each other, but doing it in the right way.

MARK: Yeah, this is not an area where you want to dive in and do it yourself, right?

AUSTIN: Absolutely.

MARK: Some of our clients have … they care for children who have special needs, and some of those special needs kids, they’re actually adults at this point. And the parents want to take care of these kids, or make sure these kids are taken care of in their will. Are there trusts that can help with that?

AUSTIN: Absolutely. So this is an area in estate planning that is near and dear to my heart, and this is where a special needs trust comes into play. And what a special needs trust does is basically it says we’re going to be able to make distributions to a special needs beneficiary, but those distributions will not disqualify them from receiving the government benefits to which they need. So a lot of times these special needs beneficiaries, they’re having their medical bills, some of their housing, food costs, there’s government programs that can help them, but they’re needs-based. So if you don’t have a special needs trust set up, what would happen is if the parents passed away and actually just named their special needs child, you could end up disqualifying that child from benefits, and they would have to draw down on, basically, their inheritance before they’d be able to reapply for those government benefits. Well, with the special needs trust, if those same parents had set up a special needs trust and then said the inheritance goes to that, the child would remain on the government benefits, and whatever those government benefits didn’t cover, then the trust can cover for that child. And I like to tell parents, this is also for the niceties in life. So a lot of times these special needs trust are going to set up to make sure that if the parents are gone, that these special needs beneficiaries still have, you know, Christmas presents, goes on vacation, birthday presents, things like that that you would think, “Oh, well, that’s really nice.” Well, that’s what that trust is for, for the niceties, things that the government programs will not pay for.

MARK: All right. Austin, last episode that we did was about charitable giving. And one thing we didn’t talk about on that episode are the types of trust that exist to really facilitate charitable giving and other types of family transfers. So can you talk a little bit about what those are like?

AUSTIN: Absolutely. So in the charitable world for trusts, there’s going to be two main types of trust, and they’re going to be known as the charitable lead trust or the charitable remainder trust. And the lead and remainder kind of gives you the picture of who is getting what and when.

So a charitable lead trust means that the charity is going to be receiving an income stream for either a term of years or for basically the life of the person who set it up. Once that term is over—so either the years have passed or the person whose life we’re measuring has passed—then whatever is left over goes to non-charitable beneficiaries. So I’ll just put it this way. So, say, a person had children that they wanted to benefit, but they also wanted to benefit charity. They could establish a charitable lead trust. The charity would receive an income stream for either a period of years or for the grantor’s life. And then after that, whatever is left over would go to the children of the person who set up the trust.

Now, flipping that on its head, you have a charitable remainder trust, and you just basically change places here. A charitable remainder trust is where the grantor, themselves, receive an income stream for either a period of years or for their life, and at the end of that period, everything that’s left in the trust goes to charity.

So the types of trust may sound similar, but their tax ramifications can, you know, be quite different. Charitable remainder trusts are really good for people that, say, have highly appreciated assets that they want to be able to sell without, basically, incurring a lot of capital gains. So a lot of people will take assets that have low basis—they’re highly appreciated—transfer it to a charitable remainder trust. Well, because a charitable remainder trust, unlike a charitable lead trust, is a fully charitable trust for income tax purposes, when that trust, the charitable remainder trust, sells those assets, you don’t incur the gain, and the trustee of that trust can then reinvest the full proceeds. So if you had a million dollars’ worth of fair market value assets in there, but only had, you know, $100,000 worth of basis, the trust would sell those assets, pay none of the gain at that point, reinvest the million dollars. Well, then the grantor would receive an income stream over his life, some of it taxable—basically you’re getting it almost like an installment sale at that point. And then at the end, the charity gets what’s left over, and you’re actually entitled to a little bit of a charitable income tax deduction based off of the present value of what the charity is expected to receive at the end.

So I don’t want to bore our listeners with all the mechanics, but these trusts are powerful tools, and depending on your circumstances and what you’re trying to accomplish, these trusts, if you have charitable intent, can make a dramatic impact, not only on your charitable giving, but on your income tax and estate tax obligations.

MARK: I love that phrase “powerful tool” because, as I think as you’ve demonstrated here, lot of different types of trust for a lot of different situations that can solve, you know, many different problems.

But the problem is, I think, in many cases, people do the work, they get the trust set up, and then they just don’t follow through and actually start moving the assets into the trust. In other words, they don’t take that final step which really allows them to benefit from the whole structure in the first place. So what’s behind that? What’s that barrier? And how can people overcome that?

AUSTIN: Well, let’s just be frank: Estate planning is something that a lot of people do not take joy in. When you’re contemplating your own mortality, no one really wants to think about themselves passing away. So when you go to an estate-planning attorney and you’ve done the documents, you think, “Gosh, I’m done. That should be it.” But, really, with a revocable living trust and like other trusts, there are more steps that you have to take. So I would say good estate-planning attorneys are going to basically hold the hand of their clients through the entire process. Drafting and citing the document is not the end of the process; it’s right in the middle. You’ve established what your goals are. You know who your beneficiaries are. The trust is a right vehicle for you to be able to do that. And then the next step is actually transferring those assets into the trust.

Now, it can be daunting. The assets that you’re transferring into the trust, you can go to your financial advisor and tell them, “Hey, can you help me retitle some of these assets?” It’s something that you can do on your own, but it’s highly recommended that don’t do it on your own.

So I get the frustration with some people that think that, “Man, I’ve spent the money. I’ve got the documents. Why is there more to do?” But if you do it, you’re going to get all those benefits that we talked about. And if you don’t, you’re going to basically have spent money and got none of the benefits because if you don’t transfer those assets into, for our sake, the revocable living trust, just because you have the trust doesn’t mean that you’re going to avoid probate. If you don’t make those transfers, you’re still going to have to go through the probate process just as if you never went to the attorney and paid money for that trust.

MARK: Yeah, this is one of these situations where you really need to complete every single step of the process to get the benefit. Is that right?

AUSTIN: Absolutely.

MARK: Austin Jarvis is a director of estate, trust, and high-net-worth tax analysis here at Schwab. Austin, thanks for being here today.

AUSTIN: My pleasure. Thank you for having me.

MARK: I started this episode with a lighthearted example of how to decide which pet to get. The point I was making is that the driving force behind just about any decision should be what you want to accomplish.

When it comes to pets, you need to look at your situation and ask appropriate questions based on what you want from a pet. You need to whittle away at the decision tree until you have a pet that is likely to provide a relationship that works for you, your family, and the pet.

Depending on the type of pet, that process can be complicated and intimidating. Trusts are the same way. But the process of choosing one is the same.

Don’t get lost in the minutiae right from the start of the process. Don’t let the complex structures and jargon deter you.

To determine which trust is appropriate, keep your focus on what you’re trying to accomplish. Keep reminding yourself what your goals are and what problems you’re trying to solve.

And then compare the attributes of the different types of trusts to see if there’s a good match.

One more thing to remember is that you don’t have to do this alone.

To learn more about how a trust could help you, we have resources online and knowledgeable people you can talk to. Just visit Schwab.com/Trusts.

Thanks for your time. This is our last regular episode of season nine.

We’re preparing a bonus episode that will cover our 2022 market outlook and what our analysts are saying about the new year. We’ve done a couple of these in the past, and they are among our most downloaded episodes, so be on the lookout for that episode in the very near future.

To hear more from me, you can follow me on Twitter @MarkRiepe. M-A-R-K-R-I-E-P-E.

If you’ve enjoyed the show, please leave us a review on Apple Podcasts. And if you know someone who might like the show, please tell them about it and how they can also follow us for free in their favorite podcasting app.

For important disclosures, see the show notes and Schwab.com/FinancialDecoder.

 
¹https://www.aspca.org/about-us/press-releases/new-aspca-survey-shows-overwhelming-majority-dogs-and-cats-acquired-during

²https://www.statista.com/statistics/1191395/pet-ownership-status-due-to-covid-19-in-the-us/