Outright Distribution: An outright distribution is just that: mom and dad die and their children receive their inheritance outright, in one lump sum. Simple, clean, and dangerous. On average, an inheritance will be gone within 18 months of a child receiving it. And it doesn't matter how old the child or how much the inheritance. If a child gets divorced or goes bankrupt, the inheritance could be lost. Hence, the emphasis we place on asset protection trusts to avoid such outcomes. This is just one of the many reasons to avoid probate and use either a revocable living trust or irrevocable medicaid trust.
Step-Distribution: With this arrangement, the inheritance is distributed to a trust, with built-in speed bumps - to help slow the speed at which the trust funds are depleted. For example, one third of the principle might be payable to your child at age 30, one half at 40 and the remainder at 55. Unfortunately, this approach adds little asset protection, and, once the principle is gone, it's out of your bloodline and gone forever.
Asset Protection Trust: With this type of trust, the child's inheritance is distributed according to various guidelines and incentives that the parent provides in the trust document. The message? Adhere to the guidelines and philosophies of the trust and assets will flow; get into trouble and the trustee can stop the flow. The trust holds and manages the child's inheritance for the life of the child, or until all trust funds have been distributed. An independent trustee is usually chosen to manage the trust in the beginning. Then if the children are responsible enough, at some point they can step in as co-trustee, and eventually even become the sole trustee in charge of the trust. (When the child dies, any remaining assets in the trust can pass to the child's heirs or other individuals or entities.)
An asset protection trust provides the most flexible vehicle for values-based legacy planning - with incentives, guidance and protections for your children. It also provides valuable asset protection - in case your children encounter difficulties during their lives, such as drug abuse, lawsuits, bankruptcy or divorce. Find more asset protection strategies from our Wyoming Law Firm by following the links.
To better understand how an asset protection trust works, consider a hypothetical family, Tom and Sally Ray, and their children John and Jane. Tom and Sally wish to set up a values-based estate plan that leaves their assets to John and Jane. The Rays' family values include professional achievement, academic excellence, a spiritual home life, social contribution, financial responsibility, community involvement and devotion to family. We would begin with a customized, comprehensive joint revocable living trust. By transferring all their assets to the trust, probate would be avoided. Further, the trustees they designate would, upon their death or incapacity, maintain full control of their property.
In order to provide the greatest amount of asset protection and guidance for the Ray children, we would create an asset protection trust for each child that springs into effect once both parents have passed away. A trustee would serve as the gatekeeper of the trusts, with discretion over when and how to release the monies in the trust. The trustee would be guided by instructions and values that Tom and Sally draft into the trusts. Note, these strategies are are compatible with irrevocable medicaid asset protection trusts and would prevent any Medicaid clawback penalties.
These instructions could permit the trustee to distribute trust income and principal to each of their children for their needs (health, education, support) so long as they are living by the family's values. If a child gets into drugs, gambling or has other problems, the trustee would be instructed to turn off the faucet and stop the flow of money - refuse to distribute assets from the trust until the child shapes up, cleans up and gets back on track. Meanwhile, the trust would allow the trustee to redirect the trust's assets to assist the child by paying for counseling, drug testing, or whatever is necessary to help the child get back on his feet.
The Rays would also include extensive guidelines and values for their children in each lifetime trust. For example, they might direct that their trustee assist each child by distributing income and/or principal out of a trust for:
Additional language could ensure that the trustee would consider the future probable needs of the child — for example, educating the child on the long-term tax advantages of retaining funds inside qualified plans, IRAs, 401ks and such. The Rays' goal was to set up their estate plan so that their hard earned wealth is managed correctly and left to their children would provide a positive structure within which Jane and John could make the most out of their lives. By using lifetime trusts with detailed instructions, values and guidelines, the Rays would succeed in protecting their hard-earned wealth while providing their children with invaluable guidance. These forward thinking actions can even create a legacy that benefits their descendants for generations to come.