There is a misconception that people who do not have estate tax concerns do not need a trust. With the 2025 unified credit set at $13.99M per individual ($27.98M per married couple) very few people are affected by the estate tax. Even if the unified credit “sunsets” at the end of this year as scheduled under the Tax Cuts & Jobs Act of 2017, the unified credit will be approximately $7M per individual ($14M per married couple),1 so estate taxes still will not be a concern for most people. Does it follow that most people do not need a trust? No.
Revocable trusts can help clients achieve any number of planning goals. Also, with a surviving spouse’s ability to elect portability of the unused unified credit of the first spouse to die, even couples with potential estate tax concerns can use a joint trust so their assets act in the same way as they did prior to the creation of the trust,2 which many clients prefer. Following are some common scenarios where incorporating a revocable trust can benefit your clients.
Many parents with young children think their assets are not sufficient to require trust planning. While young families might not yet have accumulated a lot of wealth, what they frequently do have is life insurance that is intended to pay off their mortgage and to help raise their children if a spouse dies. If something happens to both parents, this can result in a large asset (the house) and a lot of insurance proceeds passing to minor children.
I frequently see couples with young children opt for testamentary trusts, thinking it is less expensive than creating an inter vivos trust. Assuming that is true (which I doubt), it will be far more costly to administer a testamentary trust due to the court’s involvement. Worse, the will may not include a testamentary trust or other important provisions like the power to sell real estate or authority to distribute to an Ohio Transfer to Minors Account.3
By incorporating an inter vivos trust into their estate plan, a couple with minor children can control the age(s) that their children will receive their inheritance. They can also craft special provisions allowing the Trustee to offset expenses that a guardian of the person will incur for raising their children to the age of majority. Under R.C. 5801.04(C), the parents can designate a “beneficiary surrogate” to receive trustee reports on behalf of the children, which provides oversight and accountability of the trustee and prevents the children from learning the extent of their inheritance until they are more mature.
Spouses who have children from prior relationships have unique planning needs. Often, they want to provide for their spouse but also ensure that their assets ultimately pass to their own children. Separate trusts for the spouses facilitate these goals. The trusts can provide for the Trustee to distribute income and principal to the surviving spouse for the surviving spouse’s maintenance and support. The distributions can be limited to an ascertainable standard, or the trustee can have broader discretionary authority. The trusts can also provide for a child of the decedent to be the successor trustee or to serve as co-trustee with the surviving spouse, which provides oversight of how the trust assets are distributed to or for the benefit of the surviving spouse and ensure that the intent of the first decedent is carried out. After the surviving spouse’s death, the trust provides for the remaining assets to be distributed to the children of the first decedent under the terms and conditions established by the first spouse to die.
Alternatively, some blended families want to treat all of the children of both spouses equally — as if they were the children of both — but want to ensure that the surviving spouse is not able to alter the plan and disinherit the children of the first spouse to die. In this case, it would be possible to use a joint trust. The terms of the trust should explicitly state that the trust becomes irrevocable after one spouse has died. The trust terms can also explicitly state that the children of each spouse, and their descendants, are to be considered the children and descendants of both spouses for purposes of dividing the remaining assets after the surviving spouse’s death. Again, during the life of the surviving spouse, a child of the first decedent can be appointed the successor trustee or co-trustee with the surviving spouse to provide oversight and ensure the dispositive plan is not upended after the first decedent’s death.
Sadly, many families face issues with a family member who has a mental health or substance abuse disorder. A concern for such clients is that an inheritance of any size could provide the beneficiary the means to cause themselves substantial harm. Clients in this situation often want to provide support for the person while preventing harm and, possibly, maintaining the beneficiary’s eligibility for government benefits like Medicaid. Incorporating a trust in the estate plan can address all of these concerns.
Creditor concerns come in many forms. It may be clients have a child in a “high risk” field (like a doctor or lawyer) or it may be a child has poor financial management skills or already has large debts or is facing a potential bankruptcy. In this scenario, the child’s share of the parents’ assets can be held in a trust for the child’s lifetime. The trustee can use trust assets to provide support for the child, but the trust’s spendthrift provisions protect the assets from the child’s creditors. The trust can also include “trust protector” provisions designating someone with the authority to change the terms of the trust if needed to strengthen the creditor protection or to terminate the trust if the creditor protection is no longer needed.4
It is reality that some clients do not like their child’s spouse. The child’s spouse could be a spendthrift who the clients fear will pester their child to “waste” the child’s inheritance. Clients may also want to prevent a child from giving all their inheritance to the spouse after the child’s death, preferring that the assets pass from the child to the clients’ grandchildren (this is actually a common goal, even if clients do not have issues with their in-laws). Clients often fear that a child will inherit their money and later die, leaving all of the inherited assets to the child’s surviving spouse who could then remarry and have another family to whom the spouse leaves some or all of “the client’s money.” A lifetime trust for the clients’ child addresses these concerns.
The clients may also want to ensure that the inheritance will not end up being divided in a divorce. While an inheritance is generally not “marital property,” if an inheritance is distributed outright and then co-mingled with marital property, it can be difficult to prove what was inherited and could complicate the divorce settlement.
Again, a lifetime trust for the child after the parents’ deaths can achieve the clients’ goal of protecting the inheritance for their child and the child’s descendants. The trust for the child can be as permissive or restrictive as the client wants. The child could even serve as trustee of the child’s trust to achieve maximum flexibility while still achieving the clients’ goals.
Everybody knows someone with a “nightmare” probate story. In fact, I often have clients who come to me after their parents’ deaths when one of two things happened: (1) their parents planned well and everything was so easy that they now want to give that “gift” to their children or (2) their parents did not plan well, the whole experience was a nightmare, the children all ended up fighting, and they do not want to do that to their own children. Probate is also public. In many counties, it is very easy to access all of the documents filed in an estate. Many people do not like the potential for friends and neighbors to learn “their business.” This is particularly true when a client has an unusual dispositive plan (like disinheriting a child).
While Ohio offers many probate avoidance techniques, like transfer on death designations for real estate, cars and boats, and securities and payable on death designations for bank accounts, they are often not the best option. For example, naming multiple beneficiaries on a transfer on death designation for real estate can complicate the sale of the property after the owner’s death – especially if the beneficiaries are married and every spouse has to also sign the deed. Naming beneficiaries directly with these tools also does not allow for changed circumstances (like the death of a child before the parents), and if the clients are not diligent in updating the beneficiary designations when circumstances change, there is a risk that the property will not be distributed as the clients intended.
Incorporating a revocable trust into a client’s estate plan provides flexibility and reduces complications. For example, if the trust owns the real estate (or is named TOD beneficiary), the trustee can sell the real estate and distribute the proceeds to the beneficiaries. The trust should also have provisions for what happens if a beneficiary predeceases the client. The trust can be amended to react to changed circumstances without requiring updating all of the beneficiary designations. If probate avoidance is important to the clients, you should impress upon them the importance of properly funding the trust during their lives or through beneficiary designations naming the trust. I frequently work with clients and their financial advisors to ensure that this funding occurs.
These common scenarios are just the tip of the iceberg for when including a revocable trust may greatly benefit a client. To serve our clients best, it is important to dispel the myth that trusts are only for the super wealthy. Creating a trust is often less expensive than people think it will be, and, while it may cost a little bit more on the front end, a trust can avoid costs and complications on the back end, which, in my experience is something clients want to achieve.
Christina Clowers Flanagan is a partner at Wood + Lamping LLP, is an Ohio State Bar Association Certified Specialist in Estate Planning, Trust and Probate Law and currently serves as Vice Chair of the CBA Estate Planning & Probate Practice Group. She is a 2011 graduate of University of Cincinnati College of Law licensed in Ohio and Kentucky.
1 Indexed for inflation each year.
2 Rather than a complicated, two trust, A/B structure.
3 Which can be extended until age 25. R.C. 5814.09.
4 Any trust can include trust protector provisions. See R.C. 5808.08 and the Official Comments thereto. This is one example of a situation where trust protector provisions could benefit your clients.