QTIP Trust
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What Is a QTIP Trust?
A qualified terminable interest property (QTIP) trust is a legal document that protects the assets of the grantor’s spouse on behalf of the surviving spouse. Unlike other trusts, however, a QTIP trust retains control of the assets when the beneficiary spouse dies.
The QTIP trust grants the beneficiary spouse an income for life. The income generated by the trust is paid annually to the beneficiary spouse. The trust also qualifies for an unlimited marital deduction, making it possible for the surviving spouse to use the federal gift and estate tax exemption.
Qualified terminable interest property trusts are common options for people who have children from a previous marriage. In the event of your death, your surviving spouse would receive income from the trust, but they do not control the assets, allowing you to assign them to your descendants as you prefer. Additionally, if the surviving spouse remarries and dies, your assets would not automatically go to their new spouse.
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Elements of a QTIP Trust
To set up a QTIP trust in Texas, you need to meet a few key requirements. First, the trust must provide an income for the surviving spouse for life. The right to the income generated by the trust can’t be subject to any contingencies. You can’t, for example, terminate the income your surviving spouse receives if they remarry. There also can’t be any other beneficiaries while your spouse lives.
The QTIP trust must be irrevocable as well, which means it can’t be changed or revoked once it’s created. The beneficiary spouse has the right to demand that non-income-generating assets be transformed into assets that do generate income. The beneficiary spouse, however, never gains the power to appoint the trust’s principal to any other beneficiaries that you’ve not named.
How QTIP Trusts Work
When you create a QTIP trust with the help of an estate planning attorney, you can decide whether to transfer assets immediately or to arrange for them to be placed in the trust after your death. As part of the creation of the trust, you need to appoint a trustee who will oversee that everything is done as you wish. A professional trustee can be a good option.
You must then choose the beneficiaries. Remember that your spouse is your lifetime beneficiary, giving them the chance to receive an income from the assets. After your surviving spouse’s death, the final beneficiaries can be any family members you choose, including adult children or a second spouse.
Tax Advantages of a QTIP Trust
A QTIP trust allows the assets to qualify for marital deduction. This means that the assets held in the trust are excluded from your estate taxes once you die. Once the surviving spouse dies and the trust is dissolved, the assets become part of the other named beneficiaries’ estates for tax purposes. Additionally, the income the trust generates would also be part of the marital deduction. QTIP trusts can protect your spouse’s financial situation long after you’re gone.
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Benefits of a QTIP Trust
A QTIP trust and marital trust have some similarities, but the former gives you the added benefit of maintaining control over where your assets go once your surviving spouse dies. Your final beneficiaries will still receive the assets you want them to have, no matter what your spouse does after you die. This asset protection is one of the most vital benefits a QTIP trust offers.
You also get to maximize estate tax benefits by using the unlimited marital deduction. Perhaps even more helpful for you and your surviving spouse is that this trust protects your spouse from creditors. That’s because your spouse will have only limited access to the trust assets.
Estate Tax Planning With a QTIP Trust
The assets transferred into the QTIP trust are essentially removed from your taxable estate. These assets won’t be subject to federal estate taxes upon your death, either, protecting your spouse. Estate taxes are deferred until the surviving spouse’s death.
A terminable interest property trust can be useful in instances when you have children from another marriage. The trust ensures that you can provide for your current spouse while still being able to assign your children or other family members as beneficiaries when that spouse passes. The trust would prevent your assets from going to another person if your spouse remarries, for example.
A QTIP trust also offers asset preservation if you’re worried about creditors or if you want to ensure that your surviving spouse doesn’t make unwise investments with your assets. Because your spouse doesn’t have control over the assets, future generations can still benefit from what you leave behind.
Creating a QTIP Trust
To create a QTIP trust, you need to hire an experienced estate planning attorney. Although the process of setting up the trust can happen quickly, you must ensure that all of the details are hammered into place so that your assets are fully protected.
Your lawyer can help you identify the assets that can create income for your spouse. This can be more complex than it may seem. You’ll then have to make a QTIP election on the right tax form and list all of the assets you’ve selected for the trust. Once you’ve made the election and the estate tax return is filed, which typically occurs nine months after your death, the trust becomes irrevocable.
QTIP Trust FAQs
1. What Is the Difference Between a QTIP and a Marital Trust?
The main difference between a QTIP trust and a marital trust is that in the former, your spouse doesn’t gain control over the assets. In marital trusts, the assets would go to your spouse, and they would be able to use them and assign them to other beneficiaries as they see fit.
3. What Are Two Requirements of a QTIP Trust?
A QTIP trust must be set up as an irrevocable trust, which means it can’t be changed. The beneficiary spouse must also be a United States citizen.
2. What Are the Downsides of a QTIP Trust?
One of the downsides of a QTIP trust is that once you transfer assets, you can’t change them or remove them from the trust. That’s why it’s so vital to work with a professional as you set everything up. Another drawback may be that your spouse will only have limited access to the assets, so if they run into financial difficulties, they may not be able to get more out of the trust besides their income.
Get Started With Trusted Estate Planning Lawyers Today
If you’re considering setting up a QTIP trust, it’s vital to consult with knowledgeable attorneys who can advise you on the right assets to include and ensure that everything is set up correctly. At Hunter Sargent, PLLC, our seasoned team has decades of experience that we can put to work on your behalf. Contact us to learn more about your estate planning options today.
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