Gordon Fischer Law Firm
  • Services
  • About
  • Blog
  • Contact
  • Subscribe
  • Menu
  • Facebook
  • Twitter
  • Instagram
  • Linkedin
  • GoFisch Law Blog

Read GoFisch: August Edition

From Gordon's Desk..., Newsletter
Woman with laptop reading GoFisch

Let’s be honest a newsletter from your local law firm doesn’t sound like it should be the top must-read on your list. But, GoFisch is different. It’s easy to read, interesting (or so I’ve been told), and a concise, helpful run down on topical news and my recent blog posts. Give GoFisch a read, subscribe, and share it with your friends & colleagues. (If you missed the previous edition of GoFisch, you can read it here.)

August 21, 2017/by Gordon Fischer
https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/08/tatiana-nino-2962.jpg 3456 5184 Gordon Fischer https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/05/GFLF-logo-300x141.png Gordon Fischer2017-08-21 05:42:002020-05-18 11:28:57Read GoFisch: August Edition

Trust Beneficiary: Break it Down

Trusts, Wills, Trusts & Estates
Stacked books and notebook

What’s It All For?

In Hamilton: An American Musical, a perplexed Alexander Hamilton asks Aaron Burr, “What was it all for?” Regarding trusts, we know that all the work is for the beneficiary.

Classic Definition of “Trust” and “Beneficiary”

A trust is created when a property owner transfers property to a person with the intent that the recipient hold the property for the benefit of someone else. There are three parties to a trust: (1) the settlor (also called donor or grantor); (2) the trustee; and (3) the beneficiary. Every trust must have at least one beneficiary – a person for whose benefit the trust property is being held and who therefore has legal rights to enforce the trust.

Beneficiaries Must Be Sufficiently Definite

 

two people standing against white wall laughing

The beneficiaries must be described with sufficient detail that their identities can be determined. If the description of the beneficiaries is too vague or indefinite, then the trust will fail and the property will be returned to either the settlor or the settlor’s estate.

Let’s take two simple examples.

  • Alan establishes a trust for the benefit of his then-living children. The beneficiaries are sufficiently definite.
  • Sara establishes a trust for the benefit of all her friends. The beneficiaries are insufficiently definite.

Easy, right?

Exception: Charitable Trusts

There is one narrow, but critically important exception to the rule beneficiaries of a trust must be sufficiently definite. Charitable trusts–trusts established to fulfill a recognized charitable purpose – can be for the benefit of an indefinite group. For example, a charitable trust set up to provide scholarships to disadvantaged youth will be held valid.

Multiple Beneficiaries: Concurrent Interests or Successive Interests

Trusts can have more than one beneficiary and they commonly do. In cases of multiple beneficiaries, the beneficiaries may hold concurrent interests or successive interests. An example of concurrent interests is a group of beneficiaries identified as grandchildren of the settlor, who all receive distributions after their grandparents’ deaths. An example of successive interests is a trust in which one beneficiary has an interest for a term of years, and the other beneficiary holds a future interest, to become possessory only after the present interest terminates.

 

dad swinging children on beach

Special Remedies for Beneficiaries

There are several remedies available to an aggrieved beneficiary in the event of a breach of trust by a trustee. Such remedies include claims for damages, injunction to restrain a breach, tracing and/or recovery of trust property, among others. A beneficiary may be able to recoup damages, perhaps even from the trustee’s personal assets. If the trustee wrongfully disposes of trust property, the beneficiaries may be able to reclaim the property from a third party. Again, legal remedies for a breach of trust by a trustee are broad.

Let’s Talk More About Trust Beneficiaries

Interested in establishing a trust or having difficulty deciding on beneficiaries? Don’t hesitate to reach out; email me at gordon@gordonfischerlawfirm.com. I offer a free one-hour consultation to everyone, without any obligation. I’d be happy to talk to you any time.

August 17, 2017/by Gordon Fischer
https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/08/mikhail-pavstyuk-8436.jpg 1440 2560 Gordon Fischer https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/05/GFLF-logo-300x141.png Gordon Fischer2017-08-17 09:26:122020-05-18 11:28:57Trust Beneficiary: Break it Down

When is a Trust Not a Trust?

Trusts, Wills, Trusts & Estates
question mark cards

Similar to the bad joke, “When is a door not a door? When it’s a jar!” Ha! Similarly, but not as punny, we might well say, “When is a trust not a trust? When it’s a Totten trust!”

A Totten trust, also known as a savings account trust or a poor man’s will, is not a trust at all. Rather a Totten trust is simply a name given to a type of savings account. In this savings account, the depositor opens an account with her name designated “as trustee for” someone else. In a Totten trust, there is nothing stopping the depositor from withdrawing the funds for her own use, at any time during her life. Upon her death, any funds remaining are distributed to the so-called “beneficiary.”

Despite the confusing terms, no trust exists. The so-called “trustee” is not obligated to hold the property for the benefit of anyone, including the so-called beneficiary. Rather, the depositor can withdraw funds for her own use at any time during her life.

A Bit of History

The name—Totten trust—came from a New York case where their legality was tested, called In re Totten. The court ruled it was fine for one to open a banking account as a trustee for another person, who had not right to the funds until the account owner passed away. Previously courts had not allowed this under the objection that the situation could take the place of a will, which required more formality than this bank account scenario. To legally maneuver around this the Totten court called the account a “tentative trust” in which the account owner acts as trustee of the funds that will someday go to the trust’s beneficiary. After this decision other state legislatures authorized and regulated such accounts. Often they were referred to payable-on-death accounts in lieu of the term Totten trusts, but regardless of name, the result is the same.

Iowa & Totten Trusts

In states like Iowa, where Totten trusts are recognized, the proceeds for the account pass to the named beneficiary outside of the probate process. The treatment is just like a POD (“payable on death”) account or TOD (“transfer on death”) account.

Iowa recognizes Totten trusts generally, but specifically excludes them from the Iowa Trust Code. Iowa law describes legal trusts as follows:

‘Trust’ means an express trust, charitable or noncharitable, with additions thereto, wherever and however created, including a trust created or determined by a judgment or decree under which the trust is to be administered in the manner of an express trust. ‘Trust’ does not include [a] Totten trust account. Iowa Code 633A.1102(18)(a) (emphasis added).

When is a trust not a trust? Hopefully, thanks to this blog post, you now know that Totten trusts are not true trusts. I’ve written quite a bit on real trusts and would be happy to talk with you about what sort of trust may be right for you. Give me a call at or shoot me an email.

August 16, 2017/by Gordon Fischer
https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/08/question-mark-istock_000003401233medium-copy.jpg 1131 1698 Gordon Fischer https://www.gordonfischerlawfirm.com/wp-content/uploads/2017/05/GFLF-logo-300x141.png Gordon Fischer2017-08-16 16:12:582020-05-18 11:28:58When is a Trust Not a Trust?
Page 113 of 131«‹111112113114115›»

Find your topic among my 200+ posts:

Topics I write about:

  • Book Club (13)
  • Charitable Giving (94)
  • Employment Law (10)
  • Estates & Estate Planning (141)
  • Events (38)
  • From Gordon's Desk… (54)
  • Legal Word of the Day (13)
  • News (18)
  • Newsletter (16)
  • Nonprofits (109)
  • Powers of Attorney (23)
  • Taxes & Finance (61)
  • Trusts (30)
  • Uncategorized (5)
  • Wills (28)
  • Wills, Trusts & Estates (100)

Visit the blog

News, notes, and points-of-view on estate planning and nonprofit law

Gordon Fischer Law Firm, P.C.

Gordon is based in Cedar Rapids and serves clients all across Iowa

Get in touch

(515) 371-6077 gordon@gordonfischerlawfirm.com
Copyright © 2018 | Gordon Fischer Law Firm | Website developed by Illuminated
  • Facebook
  • Twitter
  • Instagram
  • Linkedin
Scroll to top