Family trusts

Because trusts are state sensitive, I have encouraged that each congregation should work to create a family trust template and then share what they discovered with other congregations. A family trust can be created in several ways to fit a variety of desires and interests, so every template should be tweaked to fit each family.

There are numerous essential elements of trust and choices you may make in forming one or more for the protection of your family.

Revocability or irrevocability

In many states, it is presumed a trust is revocable unless the trust deed specifically states that it is irrevocable. Since the assets of a revocable trust can be reached by your creditors, it is important to state that the trust is irrevocable.

Beneficiaries

The beneficiaries (family members in the case of a family trust) should be listed by name in the trust deed. It is acceptable to name yourself as a beneficiary. Assets may be distributed to beneficiaries in lump sum, through regular periodic payments, or at the discretion of the trustee. When planning distributions, take into account the fact that creditors of a beneficiary may not reach trust assets until they are actually distributed to the debtor beneficiary.

The Trustee

The trust deed should appoint a trustee and an alternate trustee, after you obtain their consent to the appointments. A trustee may be an individual or a company, such as a bank or a trust company. The disadvantage of using an individual as a trustee is that if the trust is set to endure for many years, the trustee will have to be changed when the original trustee dies. Companies, by contrast, may exist beyond the lifetime of any individual. An overseer, like a church or an order, could be responsible for appointing a new trustee. The trust deed should tell the trustee how to distribute trust assets, and it should define the trustee's discretionary authority, if any. It is acceptable to name yourself as trustee.

Assets

Your creditors may attempt to reach trust assets by claiming that your transfer of assets to the trust was a fraudulent attempt to avoid your debts. Consequently, you should transfer assets to the trust in a manner that raises no doubt about the legitimacy of the transfer. A transfer of assets may be deemed fraudulent (and reversible by court order) if you were insolvent at the time of the transfer, if you became insolvent because of the transfer, or if you anticipated immediate creditor collection action at the time you made the transfer.

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