QUESTION

Testamenary trust and how to list the trust on beneficiary forms

Asked on Mar 10th, 2017 on Trusts and Estates - Georgia
More details to this question:
My wife and I have stated in our wills that we are each other's primary beneficiary. If something happens to both of us we wish our assets be placed into a trust for our daughter. How should beneficiary forms for 401k and other investment acts be filled out to reflect that they should be directed to a trust as a secondary beneficiary although it won't be established unless both of us pass? Most forms I've seen allows you to pick 'trust' but it assumes a living trust is established. Do we list our daughter as secondary beneficiary? Or do we leave her off so the assets default to the estate and then roll into the trust as we wish in our wills? Any advice on how to accurately fill out the beneficiary forms would be appreciated.
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1 ANSWER

Maryellen Sullivan
Good question.  You can name the trust in your Wills (Smith Family Trust, for example) and not fund it, and then refer to that name, adding the detail that is it a testamentary trust (trust created by a Will).  For investment assets, life insurance, etc. you can either name the trust as a contingent beneficiary or name your estate and it will be directed to the trust.  Naming the trust directly avoids the assets having to go through the Will and hence the probate process. Naming a trust as a beneficiary of retirement funds is a bit more complicated.  Because a trust is not a person, there is no lifetime over which benefits will be paid.  As a result, the benefits are paid to the trust in full over five years.  This is true for naming estates as beneficiaries of retirement funds as well.  There are two better options:  have an attorney write the trust so that it is a "see-through trust" that conforms with certain IRS regulations that allow it to collect and pay retirement benefits over a trust beneficiary's lifetime, or name your daughter as the contingent beneficiary for retirement funds.  Both options allow your daughter's lifetime to be used to maximize the tax benefits of the retirement fund, although only paying them to a trust can prevent your daughter from withdrawing retirement funds early (if you include such restrictions in the trust language.)   
Answered on Mar 10th, 2017 at 8:04 AM

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