I know I have written at various times in the past about re-titling your assets after you have established a trust, but I still get more questions about it than just about any other topic. So, it’s time for quick review.
When you establish a trust, the purpose is usually to facilitate the management, and eventual distribution, of assets. To make that work, there must be assets that are owned by the trust. Transferring assets to a newly established trust is, in estate planning lingo, “funding” the trust.
You don’t always transfer assets to a trust immediately after the trust is created. Sometimes there are reasons to delay that step. In some situations there is a document that spells out the terms of a trust, but the trust isn’t actually established until some future event occurs.
Ordinarily, however, when a revocable trust is established, the objectives of the trust will be best achieved by transferring assets to the trust immediately. How is this accomplished?
Nathan Hannah, Attorney
Ownership of real estate is transferred by the owner executing and recording a deed. Transferring real estate to a trust is no different. For a typical revocable trust, the owner of the property transfers it from herself in her individual capacity, to herself as trustee of the trust, by executing and recording a deed that says just that. That’s all there is to it.
Changing the ownership of financial assets, like bank accounts and brokerage accounts, so that a trust is the owner is usually simply a matter of the account owner completing whatever forms the financial institution requires. Typically, but not always, the financial institution will also want a copy of the part of the trust that identifies the trustor (the person establishing the trust) and the trustee.
With some assets it’s a little harder to change the ownership. One example is stock certificates. Not many people own shares in publicly-traded companies by holding the certificates anymore. It’s far more common for the shares to be held in a brokerage account. Occasionally, however, there will be a need for this type of transfer. It usually involves sending the certificate to the transfer agent with an instruction signed by the owner of the shares, telling the transfer agent to change the ownership. The signature on those instructions usually must have what’s called a medallion guarantee. It’s cumbersome, but manageable.
Bonds, particularly government bonds, have their own rules. As with stock, it’s rare anymore to have bonds held outside of a brokerage account.
The point of all this is that when you establish a trust for the purpose of distributing assets to your beneficiaries, you have to make the trust the owner of the assets or it doesn’t work. Generally, any asset that doesn’t have a built-in mechanism for transferring it if the owner dies (for example, an account with a pay-on-death or “POD” beneficiary) is a candidate for inclusion in your revocable trust.
Some assets are usually not included in a trust, however. The primary example of this type of asset is your individual retirement account (IRA). Your IRA should have a beneficiary named on it. This means that it will go directly to the named beneficiary, without need of your trust (or will) to effectuate the transfer. And you generally get a much better tax result by passing your IRA directly to your beneficiary rather than doing it through your trust or will.
Other assets can have beneficiaries designated for them so that there is no need to include them in a trust. Here the first example that comes to mind is your vehicles. In Arizona, you can use a form provided by the state’s vehicle licensing agency that allows you to designate one or more individuals to receive title to your vehicle if you own it at your death.
Another option for vehicles is to include them on your tangible personal property list. That’s a list of specific gifts that can be attached to your will and changed at any time without changing the will. The list cannot be used to make gifts of houses or other real estate, or financial accounts, however, because those things are not tangible personal property.
Naming a beneficiary for your vehicle is similar to another set of Arizona laws that allow you to name beneficiaries on bank accounts and other types of financial accounts. This is usually referred to as a “POD” (pay-on-death) beneficiary designation. The difference between naming a beneficiary for your vehicle and one for your financial accounts is that beneficiary designations for financial accounts must be made on the records of the bank or financial institution. Like the beneficiary designation for your vehicle title, the beneficiary designations on accounts can be changed any time while you are still living.
You can also do the same thing with your house or other real estate by signing and recording a beneficiary deed. I have covered that topic several times previously, going all the way back to when the Arizona legislature first authorized the use of the beneficiary deed in 2001.
All of these methods of naming beneficiaries can be useful because they allow the assets that have the beneficiary designations to be transferred directly to the beneficiaries without the need for a court proceeding to administer your estate.
There are some situations where a beneficiary designation might turn out to be less efficient than an estate administration, however. A beneficiary designation isn’t practical if you have too many individuals named as beneficiaries. If you have more than one or two beneficiaries who you want to share in the proceeds of an account, for example, it might be better to handle that in your will. As for a vehicle or a house, it usually is too cumbersome to have multiple co-owners. If that’s what you have in mind, I suggest that you consult your estate planning attorney about possible alternatives.
Nathan B. Hannah is a Shareholder in the Tucson office, and practices in the areas of estate planning and administration, real estate, and commercial transactions. He is also a noted blogger, and you can find more of his articles on his private blog,
Contact Attorney Hannah: nhannah@dmyl.com or 520/ 322-5000
This communication is designed to bring legal developments of interest to the attention of our clients and others. It should not be relied upon as a substitute for specific legal advice in a particular matter. For further information on any of the subjects discussed, or for legal advice in connection with any particular matter, please contact us.
