Estate Planning

What is the difference between a Living Trust and a Bypass Trust?

By David M. Goldman

A Florida Living Trust is a Florida Revocable Trust created while a person is alive, while a Bypass Trust is usually a testamentary irrevocable trust. Some Bypass Trusts are created by a Living Trusts or even Florida Will.

A Trust is an ownership arrangement where property is held in the name of a "trustee" rather than in the name of the person who really owns the property. It is a separation of legal and equitable ownership. People often create Living Trusts for their own benefit, to avoid probate, address the possibility of future incapacity, or keep their finances private.

Normally, the person who creates a Living Trust names himself or herself as trustee and as beneficiary. Upon that person's death, all or a portion of the property which remains in the Living Trust passes according to the terms specified in the trust agreement.

A Bypass Trust is created when a husband or wife dies and their assets are more than the estate tax deduction. Currently this is when a couple is worth over $2,000,000. The Bypass Trust is a way to shelter the first spouse's $2,000,000 exemption from taxation when the surviving spouse dies, thereby doubling the amount that can be left tax-free to $4,000,000.

Also a Bypass Trust can protect the trust property from creditors' claims, and allow the deceased spouse to direct where the trust property passes when the other spouse dies.

Full post as published by Florida Estate Planning Lawyer Blog on May 13, 2008 (boomark / email).