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Funding is Critical to Estate Planning

March 25, 2021 by Brandon McGee

Compliments of the McGee Law Firm, Attorney Brandon McGee

Everyone knows that planning is part of estate planning. When Ted and Emily met with their attorney, they discussed their family’s needs and the legacy they wanted to leave. Ted and Emily and the attorney created an estate plan designed to achieve their goals via a Revocable Living Trust as the way to get there. After the documents were prepared, they set up the appointment to sign or “execute” the Trust and other documents, including the Property Power of Attorney, the Health Care Power of Attorney, and a Pour Over Will. After that, they were done, right? 

That’s what Ted and Emily thought. But, when Ted died, Emily found out how wrong they were. A Trust only controls the assets titled into it, otherwise known as “funding the Trust.” When Ted passed away, it was discovered that the Trust was still unfunded. This meant some assets were held in joint tenancy and passed to the surviving joint tenant, Emily. While other assets passed by beneficiary designation. Ted had still more assets in his own name. Those assets had to go through probate, the public and sometimes difficult process by which title is passed from a person who has died, through intestacy if there is no Will, or, in Ted’s case via his Pour Over Will to the Trust. 

Funding is the process of transferring title of assets into your Trust. Emily learned that planning is not enough; funding is also critical to an estate plan. An unfunded trust is the equivalent of a treasure chest without any gold in it. As part of your estate plan, a good estate planning attorney will instruct you on what and how assets get transferred into your Trust, or may include funding in the fee. Ownership of most assets should be transferred into your Trust. Exceptions are:

  • Retirement accounts, such as IRAs, 401(k)s, 403(b)s, etc. Doing so would have negative income tax consequences. In some circumstances you may want to change the beneficiary designation of these accounts to your Trust.
  • Custodial accounts, such as UTMA and UGMA accounts.
  • Life insurance. However, sometimes it is advisable to put this in a special irrevocable Trust in order to reduce estate taxes. 
  • Motor vehicles. Depending on the state, it may be better to leave these outside the Trust.
  • Checking account. Sometimes people want to leave a small amount in a checking account for day-to-day transactions, especially if they want to protect their privacy and not disclose the existence of the Trust.

Most lenders require you to remove your home from your Trust before refinancing. If this becomes necessary, your estate planning attorney can prepare a deed from your Trust to you as an individual. Sometimes this is necessary if the lender plans to bundle and sell your loan. If you remove the home from the Trust, remember you can and should put it back in the Trust immediately after the loan closes. Failure to do so may unnecessarily add probate expenses or may even disrupt the plan you so carefully put together.

As with most things, it’s important to see things through to the finish. In Estate Planning, that means making sure your Trust is properly funded. Planning and funding are both necessary for your estate plan to achieve your goals. 

Compliments of the McGee Law Firm, Attorney Brandon McGee an established member of the prestigious American Academy of Estate Planning Attorneys, as well as the National Academy of Elder Law Attorneys 


Written By: The American Academy of Estate Planning Attorneys

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Brandon McGee
Brandon McGee
Brandon McGee enjoys a successful law practice focusing on estate planning, elder law, Medicaid preplanning and crisis planning, and probate. Brandon and his team combine legal skills with compassion and understanding to develop estate plans that are personalized to the needs of each of their clients.
Brandon McGee
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Filed Under: Financial planning, Trusts

About Brandon McGee

Brandon McGee enjoys a successful law practice focusing on estate planning, elder law, Medicaid preplanning and crisis planning, and probate. Brandon and his team combine legal skills with compassion and understanding to develop estate plans that are personalized to the needs of each of their clients.

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TESTIMONIALS

Client Review
May 25, 2021
    

Brandon McGee is knowledgeable, experienced and professional regarding Estate Planning. The entire process of multiple meetings to establish our input, draft and sign documents and fund the Trust were well organized and clearly explained. At completion, we were presented with a very well organized binder with the documents (both paper and electronic) and lists for future action.  In short, we find Brandon McGee and his staff to be competent, professional and friendly.

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- Brian C.

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