Trusts and Estates: Put Your Trust in a Good Lawyer

Scranton, PASo, my Bucko—it is you that has drawn the honor of setting up, and managing what happens with Dad's money. You're the oldest, after all. Well, congratulations. But before you immerse yourself in estate planning, wills and trusts, and all the subtle and complex issues that go along with it, sit down in a quiet spot and stew on it a bit. When it comes to trusts, wills and the other members of the family who will be following your every move with a jaundiced eye, you have to know what you're in for…

First off, you might be inclined to have Dad set up a trust, with you as the trustee. Thus, the trust would be the beneficiary of your father's IRA. Your mother would be the named beneficiary of the trust, once your dad dies. You would then, on behalf of your mom make sure that she is afforded the chance to live comfortably, that all her bills are paid, and so on. Once she is gone, there will hopefully be some funds left over for you, and your siblings.

And better than Dad simply leaving the IRA to Mom without provisions of a trust, because she has a large, and some might say greedy family. They'll be all over the poor woman asking for a share of the pot, and it will be gone in no time. That's not what Dad wants, and you know that.

But is the trust the best way to go? A trust has its limitations.

Greedy family members aside, say Dad names your mom as beneficiary of his IRA. If Dad goes first, which is likely given that he's that much older than your mom, Mother can then roll over that IRA into a new, or existing IRA that has her children (including you) as beneficiaries.

At that point your mom can draw down the IRA according to a joint life expectancy calculated and broken out against the number, and various ages of you and your siblings, according to a set calculation formula. The annual, minimum drawdown is pretty much set, although the minimums will change through the years as your mom gets older.

If there is money left in the IRA when Mom dies, then you and your siblings inherit the funds and, at your discretion, the beneficiaries can continue to take minimum required distributions over your longer life expectancies. It's known as a 'stretch IRA' and affords the potential for years of tax-deferred wealth building.

Plus the various members of your mother's extended family are not legally entitled to any of the funds, and therefore Dad's wishes are fulfilled: your mom is taken care of in her twilight years, and you guys get the rest.

Ah, so many decisions. Just be careful, and think before you act. Trusts are great, but they are complicated documents and much more involved to set up than a standard Will. With the latter, assuming the document is sound, basic probate is pretty much cut-and-dried, and many legal firms will charge a flat rate for the service. A trust, on the other hand, is much more complex and will command the firm's hourly rate if there are issues, or if it has not been set up properly.

And be mindful of the fact that a bank will gladly serve as the trustee of the estate assets—but in so doing, they are duty bound to manage the assets of the trust in a manner according to the best interests of the trust, and the estate. It should not be a handy source for fees, or serve as a means to beef up the bank's own portfolio of funds by investing solely in bank-sponsored stocks, funds or other investments. There's nothing preventing them from investing outside of the box, if you will, if the investment is sound and the returns better. The bank should be working for you, not for itself—but this does not always happen.

A couple of other caveats. If you're working with a financial planner, make sure you're working with a bonefide financial planner, and not merely a salesperson looking to invest, or steer your dad's funds into a portfolio of products from which he, or she would accrue commissions or fees.

And make sure your lawyer can perform the required work, and truly represent you without bias from an existing, cozy relationship with a bank. It is not unprecedented where a lawyer, in tight with a certain institution, structures a trust that skews the greater
benefit toward the bank. And how would you know? There's fifty pages, or so of documents there. It's all Greek to you.

Pick your lawyer carefully, but for heaven's sake trust your trust, or estate or will to a qualified lawyer. Do NOT attempt to do it yourself. Do NOT allow the bank to do it for you, as they may skew the benefit in their direction. Once you have a legal professional in place, someone who is independent and free from bias, and someone you trust—then trust that legal professional to produce a document that works well for you, and your family.