Will giving my sister my inheritance to set up a revocable Trust with us both as the beneficiaries a good protection?

Asked over 1 year ago - Miami, FL

My unmarried sister and I have inherited equal amount of money. One year before my marriage, I gave my inheritance to my sister to set up the Trust. My sister is the grantor and I have no signing authority. Should I have been paid a gift tax ? I invest my inheritance in the Trust and from time to timeI I withdrawed money from the Trust to maintain the marital household and the lifestyle. My divorcing husband said that half of the trust is part of equitable distribution. I think he has nothing to stand on, because legally, I have given my inheritance away. The money in the Trust is legally not mine anymore, but my sister's. My sister can legally cut me out anytime. Do you think that I have protected my inheritance well against future creditors?

Attorney answers (3)

  1. Christopher Daniel Keever

    Contributor Level 4

    5

    Lawyers agree

    Answered . More facts would be needed before answering your questions in full. As to whether you should have paid gift tax when you gave your sister your money, it depends on the amount given and just how much of your interest you have given up in the money. It sounds like you still have access and control over those funds, so it is not entirely clear that you have made a gift, or if you have, the value of that gift. Also, if you have had access to those funds and used them to pay marital expenses, then it is likely some part of that trust has become marital property. You should seek the counsel of a family law attorney on that issue. Finally, the protection you have against future creditors depends on the language of the trust and how well you and your sister are complying with that trust language. A trust and estates attorney should be consulted as well.

    This answer does not create an attorney-client relationship. Unless you are already a client of the Law Office of... more
  2. Douglass S Lodmell

    Pro

    Contributor Level 13

    2

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    Answered . Your description leaves open several questions. You say that from time to time you withdraw money to maintain the household. If you in fact have that power then the trust could be seen as part of your estate. However, if this was an inheritance then it is likely considered a separate asset in any case and would normally not be included as part of the marital estate. As far as gift tax it depends if you "disclaimed" your interest or accepted it and then gifted it. Definitely I would recommend you speak with a local estate attorney and clean it up.

    Douglass Lodmell is the nations #1 Asset Protection attorney and has clients in all 50 states, protecting over $4... more
  3. Carol Anne Johnson

    Contributor Level 18

    1

    Lawyer agrees

    1

    Answered . Florida is what is known as an "equitable distribution" state. Equitable distribution is what judge's try to achieve in a marital dissolution when determining who gets what. It does NOT define the type of asset. What your soon-to-be-ex probably means is that since you used the money in the trust to fund marital activities and/or pay marital debts then the money is considered commingled into marital assets. Since you are using the money from the trust, you have clearly not "given it away." Depending on the nature and frequency of those expenditures - your husband may be absolutely correct. The judge will take that into account when determining what would be an equitable split of the assets. Without knowing how the trust itself is set up, I cannot comment on who controls the trust or the type of trust created. However, if you have taken distributions from the trust, and are named as a beneficiary (which you would have to be to take such distributions), unless you have a particular type of trust, the trust funds are NOT protected against creditors.

    Your question about the gift tax does not make sense - unless you are a taxing authority, no, you would never be PAID a gift tax. You would only owe a gift tax in Florida under very specific state and federal guidelines after you have given over a thing of value or cash to an individual and divested ownership or use of the item or money. Putting the money in trust is like moving it from one bank account to another and would not necessarily qualify as a taxable gift. I think a conversation with a competent trusts attorney who is very familiar with family law is in your best interest right now.

    Carol Johnson Law Firm, P.A. : (727) 647-6645 : carol@caroljohnsonlaw.com : Wills, Trusts, Real Property, Probate,... more

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