Avoid Having an Empty Trust!

You've done it. You had your trust drawn up and you've signed it and had your signature notarized. It's on nice paper. You put it in an awesome labeled binder and put it in your filing cabinet or safety deposit box. You're done right? Well, almost. At that point, you've only done half the job. The next task is to fund the trust - put assets in it. Until you do so, that trust is empty and below we’ll discuss what if that trust stays empty.

Empty trusts are problems us estate planning attorneys are called in to fix more often than we'd like. An empty trust is exactly what it sounds like. It's a trust holding no assets - whether it be real estate or simply cash. A trust is empty until its funded. Funding is a topic all on its own, but for now, just know that funding means putting assets in a trust.

Often times, when setting up a trust, whether it be with an attorney or from an automated service, you might also sign schedules or assignments wherein you evidence your intent to hold assets in your trust. That's great an all, but it very often is not enough to actually fund a trust. Funding is extremely important because a trust without assets won't be worth the ink or even the paper it's printed on because an empty trust is an invalid trust. A legal requirement for a trust to be valid is that it must hold assets in it.

While yes, you can assign personal property to a trust and thus it technically isn't empty, but if your family needs to go in front of a judge to argue your trust was valid because it had your furniture then they should go in prepared to be disappointed - especially if there was time (sometimes even as short as a few months) in between you creating the trust and your death. In that case, the judge is going to err on the side of caution and hold absent more information than a schedule saying you intend hold your real property in trust, that there is no way we can divine you intended to hold any particular real property in trust since you took no further actions to fund the trust with real property. The judge will find the trust invalid due to lack of assets and order your estate to go through probate.

Yes, there's that important concept to always avoid - probate. If your trust is empty, and you have any real property or assets above the probate threshold combined, not individually, then your estate must go through probate and the trust might have done nothing for you except cost you the expense of paper, ink, and a binder.

Yes, if you have a pour-over will, your probated assets will go to your trust and then be distributed from there. However, you are then out the cost of the probate, watch our video on that, and the 9 to 12 months to go through the probate to start, before adding on the time to distribute from the trust.

So how do you avoid the empty trust? Well, as mentioned, you fund your trust. We'll talk about this in more detail for your various types of assets, but in general, real property needs to be transferred to your trust - typically via deed recorded with the local county recorder and your bank accounts need to be titled into your trust. This entails walking into the bank with your new trust and having them change the account holder from you or you and a spouse as individuals to you or you and your spouse as trustees of your trust. Finally, you can have the trust listed as a beneficiary of some assets such as a life insurance or an IRA. However, doing so does not fund the trust at that moment. The funding occurs after you pass away.

Remember, an empty trust does nothing for you. Think of the trust as a car. It won't go on its own. You need to add gas (or electricity) to the car to make it go. That gas is your assets. Without assets, your trust is an empty car – it cost money for you to get it, it's nice to look at, but it does nothing for you besides take up space in your garage.

BETHEL LAW CORPORATION
ESTATE PLANNING | ELDER LAW | BUSINESS PLANNING

CLICK HERE OR CALL US AT 909-307-6282 TO SCHEDULE A FREE CONSULTATION.