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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.

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We dove into the definition of the term “trust” in this blog post. But, that’s just the tip of the iceberg when it comes to learning about the important agreement that’s often used for purposes including estate tax liability reduction, estate property protection, and probate avoidance. There are four standard ways of classifying trusts.

Trust Classifications

 

The word "TRUST" written in vintage wooden letterpress type

Trusts may be classified by their purpose, duration, creation method, or by the nature of the trust property. One common way to describe trusts is by their relationship to the life of their creator. Those created while the grantor is alive are referred to as inter vivos trusts or living trusts. Trusts created after the grantor has died are called testamentary trusts. Another helpful classification of trusts is comparing those which are revocable to trusts which are irrevocable.

Inter Vivos Trust

An inter vivos trust, also known as a living trust, may be either revocable or irrevocable. In a revocable trust, the grantor can retain control of the property, if the grantor so wishes, and the terms of the trust may be changed, or even cancelled. An irrevocable living trust, on the other hand, may not be changed or terminated after it is executed.

Testamentary Trust

A testamentary trust is most often a component of a will. The testamentary trust is created when the trustor passes away. The designated trustee then steps in and distributes or manages the assets of the trust according to the deceased’s wishes.

Revocable Trust

 

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A revocable trust allows assets to pass outside of probate, yet allows you to retain control of the assets during your (the grantor’s) lifetime. It is flexible in that it can be dissolved at any time, should your circumstances or intentions change.

A revocable trust typically becomes irrevocable upon the death of the grantor. You can name yourself trustee, or co-trustee, and retain ownership and control over the trust, its terms, and assets during your lifetime. You may also make provisions for a successor trustee to manage them in the event of your death or incapacity.

Although a revocable trust allows you to avoid probate, it’s subject to estate taxes. It also means that during your lifetime, it is treated like any other asset you own.

Irrevocable Trust

An irrevocable trust typically transfers your assets out of your (the grantor’s) estate and potentially out of the reach of estate taxes and probate, but cannot be altered by the grantor after it has been executed. Therefore, once you establish the trust, you will lose control over the assets and you cannot change any terms or decide to dissolve the trust. An irrevocable trust is preferred over a revocable trust if your primary goal is to reduce the amount subject to estate taxes by effectively removing the trust assets from your estate. Also, since the assets have been transferred to the trust, you are relieved of tax liability on the income generated by the trust assets (although distributions to others may have income tax consequences). Trust assets in an irrevocable trust may also be protected in the event of a legal judgment against you

Let’s Get Started

You probably still have some questions on trusts…which is why I’m here! Don’t hesitate to contact me. I offer a free one-hour consultation at which point we can discuss your personal situation, see if a trust is right for you, and set up the steps to take for success.