Written by attorney Brenda Louise Godfrey Geiger

Protecting Your Children with Asset Protection Trusts in Your Revocable Trust

When leaving property to your children, you can choose exactly how you want to leave it to them. You can leave property outright, in trust until the beneficiary reaches a certain age or until they achieved a certain goal. Or the property can be held in trust for life. These trust provisions can be included in your living trust to take effect upon your death. There is a special technique that allows us to "asset protect" the money you leave to your children for as long as you like, including for your child's lifetime. I have done this in my own trust to benefit my children and always discuss this with my clients. Once they see the enormous gift this provides outside the actual monetary gift to their children, they are very surprised and excited about it. By drafting in provisions for lifetime continuing trusts for your children that spring into existence upon the death of the surviving spouse and by naming an "independent" trustee, we can protect the money you leave behind for your children from creditors, predators and future divorcing spouses. These trusts, if properly drafted, can: (1) protect your child's inheritance from his or her spouse in the event of a divorce; (2) protect your child's inheritance from his or her creditors in the event of a financial hardship; and (3) on your child's death, direct the unused assets to your grandchildren instead of in-laws or others. (4) protect your child from him or herself at a tender age of which her or she is not yet fully mature and capable to handle the responsibility wisely. During your child's lifetime, you can even have provisions that give them the option to be the sole trustee of their own continuing trust. They still have some asset protection by restricting their access to the IRS standard of Health, Education, Maintenance or Support (which is actually a very liberal standard for distribution). But I counsel my clients' children that should they run into a creditor problem, lawsuit or divorcing spouse issue, they should resign as trustee of their individual continuing trust and appoint a trustee who is not related to him or her. By appointing someone who is unrelated (and also not working for them),we can get the highest level of asset protection. We get this asset protection because the new trustee is considered to be independent and "discretionary." This means that the trustee has the "discretion" whether or not to make a distribution to your beneficiary child from the trust that was set up for their benefit. This is a great way to give without "strings attached" or "ruling from the grave." And when your child passes on, the unused portion of their inheritance can be drafted to go to your grandchildren with the same asset protection provisions in place. If one of your children dies without leaving children of their own, then the trust funds go to their surviving brothers and sisters. This type of continuing trust also makes it easier for your children to keep assets separate from their spouses when these assets are left to them in trust. Upon your death, all of your assets are re-titled directly from your estate to your children's trusts (your children should consult with an attorney to help them with re-titling the assets). This allows your children to tell their spouse "my parents left this money to me in trust": compared to them receiving the inheritance outright and having to take active steps to keep those assets separate from their spouse. The laws of California prohibit the creation of self-settled asset protection trusts. So, your children will not be able to protect these assets themselves without your help (unless they set up a self-settled asset protection trust in another state like Nevada and hire a Nevada Trustee--the cost to do that type of planning is on average about $12,000 to $15,000. But, you have the ability to give them the gift of asset protection by including lifetime continuing trusts in your revocable trust plan. If you are going to leave assets to them anyway, why not do some good planning for them today? Not only will they greatly appreciate what you've done for them, it will get them on the right track of planning for themselves and future generations.

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