How to Create a Trust

Trusts are powerful estate planning tools that can protect assets from creditors, preserve state tax advantages and provide for beneficiaries with disabilities. Yet they can be complicated, and setting one up properly requires professional assistance. It’s a good idea to speak with an estate planning attorney or financial adviser before making the leap. They can help you evaluate the benefits, types and terms of different trusts.

A trustee holds a fiduciary responsibility to uphold the terms of a trust and distribute assets according to its terms. To be effective, a trustee must be honest, impartial and competent. A trustee must also comply with ancillary duties, including openness, disclosure and recordkeeping. A beneficiary may challenge a trustee’s actions by seeking access to complete accounting of the trust or forcing distribution of funds. If a trustee is unable to comply with the terms of the trust, the beneficiary can petition for court intervention.

The first step in creating a trust is to determine the purpose and scope of the trust and to choose a trustee. This can be done by completing a written document called a trust agreement or by noting a desire to do so in a will. The grantor can include in the trust agreement instructions on how to manage and distribute the assets of the trust, which can include cash, life insurance policies, real property (homes and buildings), investments (stocks and bonds), artwork, collectibles and vehicles, as well as personal belongings, furniture and heirlooms.

Another consideration is to choose beneficiaries, who can be individuals or groups of people. A beneficiary can be a child, spouse, charity or other organization, or a trust can be created for the benefit of pets. The trustee can manage and distribute the assets of the trust during the grantor’s lifetime, or after his death, depending on the terms of the trust agreement.

A trust can also be structured to avoid probate. This can be beneficial if the beneficiary is subject to creditor or tax problems, if a state’s incapacity laws require a guardianship, if a family member has a disability that will impair his ability to manage his finances or if a state has a generation-skipping transfer tax. A trust can also be set up to preserve privacy and reduce taxes.

The next step in the process is to create a trust fund. This can be done by signing a notarized trust document or noting the desired asset-distribution instructions in a will. It is a good idea to consult with an attorney or other estate-planning professional to ensure that the trust fund is set up correctly and that the trustee’s duties are clearly defined. An attorney can also help with other legal aspects of a will or estate plan, such as drafting a power of attorney and a health care directive. He or she can also provide advice on a comprehensive wealth-management strategy.