Matthew F. Penater — Of Counsel — The Penater Law Firm, LLC
One of the rules in estate planning is to ensure that upon the death of parents, assets are not directed outright to minor children. A bequest directly to a minor child requires a Court-Ordered Guardianship of the Property, at worst, or a Custodianship under the Uniform Transfers to Minors Act (“UTMA”), at best. A Guardianship of the Property can only be obtained through Court action and once obtained, annual accountings must be filed with the Court. Upon a minor’s 18th birthday, all assets subject to the Guardianship are distributed outright to the child, whether it is $100 or $1.0 million. A Custodial arrangement under the UTMA may be utilized under specific circumstances and does not require annual accountings to the Court. In addition, the child would not receive the assets subject to the Custodianship until age 21 instead of age 18. With that said, most estate planners and professional advisors would caution against an estate plan that results in an 21-year old receiving a lump-sum inheritance outright. Handing over $200,000 in cash to a 21-year old could very well do more harm than good. The entire amount is available for the child to spend and is subject to the claims of any creditors of the child.
The tried-and-true solution to the above problem is to leave assets for a younger child in trust, with instructions to the trustee to utilize the trust assets for the child’s benefit, until the child is old enough to manage the assets. Traditional estate planning called for the trust assets to be distributed to the child, outright, once the child attained an age (or in fractional amounts at several different ages) that the parent felt was appropriate: ex. 35 years old. The idea being that at some point, the child should be in charge of his/her inheritance and be able to control how he/she enjoyed it. However, this created another potential problem – exposure to creditors. Once the assets are distributed from the trust to the child, those assets become exposed to creditors of the child (ex. divorced spouse). So how can we give the child control of the assets while still protecting those assets from most creditors of the child?
Solution: Beneficiary-Controlled Trusts
We can modify the traditional plan of leaving assets to a trust for young children by requiring the assets to remain in a beneficiary-controlled trust instead of being distributed to the child at a certain age, thereby exposing those assets to the creditors of the child. In addition, instead of distributing the assets to the child, he/she becomes trustee of the beneficiary-controlled trust at the age where the trust would have been distributed under traditional estate planning. That way the child is in control of the assets. Under the Maryland Trust Act, a beneficiary can be the sole Trustee of his/her own trust and the assets in the trust are NOT subject to the creditors of the beneficiary. So what have we accomplished under this plan? We have: 1) avoided the need for a Guardianship or Custodianship resulting in a large distribution to a young child; 2) given the child control over the assets as a Trustee when the child is old enough; and 3) protected the assets in the beneficiary-controlled trust from the creditors of the child.
If protecting your child’s assets at your death is of importance to you and requires more attention in your plan, contact your estate planning attorney to discuss the best solution for your situation.