The Trusted Adviser | June 2011 | Volume 4 · Number 4 |
Trust and Estate Planning NewsHow Do You Make a Trust a Husband?
by Dennis A. Norden, ATG Trust Company Senior Vice President and General Counsel
 The Illinois Legislature recently passed legislation that would allow the separate inter vivos trusts of a husband and wife to take title to real estate as tenants by the entireties. Many estate planning practitioners welcomed this change as it filled a need for asset protection where the real estate was held by personal trusts, rather than individuals.
Then the fun began. Emails shot back and forth on various list-servs about how to fashion this new tenancy by the entirety.
Should it be: John Jones, as trustee of the John Jones Living Trust dated May 1, 2010, and Mary Jones as trustee of the Mary Jones Living Trust dated May 1, 2010, husband and wife, as tenants by the entirety.
Or, maybe: The John Jones Living Trust dated May 1, 2010, and the Mary Jones Living Trust dated May 1, 2010, husband and wife, as tenants by the entirety.
Really? Can a trustee be a husband or wife? Certainly a trust cannot be a spouse. What happens when one of them dies? Who is in title then?
Maybe the trust designation under the tenancy by the entireties umbrella raises more questions than it answers.
An alternate to this linguistic struggle would be to deed the real estate into an Illinois land trust, have the beneficiaries be John Jones and Mary Jones, husband and wife, as tenants by the entireties. Their personal trusts could be then named as contingent beneficiaries. This clearly accomplishes the intent of asset protection and follows the terms of the inter vivos trusts.
ATG Trust Company is an Illinois land trustee. For information, call Peggy Peters at 312.752.1427 or email her at ppeters@atgtrust.com.
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[Last update: 5-31-11] |
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