Normally, when one spouse dies passing on his/her assets in a last will and testament, the estate will be taxed heavily before the beneficiaries receive it. To avoid this steep estate tax, spouses can set up an AB trust, where each spouse leaves their property to an irrevocable trust. An AB trust is a trust created by married couples to maximize their federal estate tax exemptions. A lot of people believe that AB trusts only benefit those with large estates. The truth is anyone who may owe estate tax can benefit from an AB trust. Follow along as FindLaw helps you discover how AB trusts can be a tax-saver.
How the AB Trust System Works
When the first spouse dies, the beneficiaries (usually the couple's children) named in the trust receive that spouse's property. However, this irrevocable trust is to be used for the benefit of the surviving spouse, who does not technically own the property. There is a crucial condition that the property can be used by the surviving spouse and that the surviving spouse may even spend principal in certain instances. Once the surviving spouse dies, all the property rights and benefits of the irrevocable trust pass to the surviving beneficiaries of the trust. Because the surviving spouse does not own the property, it is not subject to estate tax. Setting up an AB trust this way keeps the portion of the surviving spouse's estate that is taxable half of what it would be without an AB trust.
Surviving Spouse's Rights Over the Assets
As mentioned, the AB trust is left with the condition that it is to benefit the surviving spouse. This gives the surviving spouse some power over the assets, depending on the provisions of the trust.
The surviving spouse's rights and benefits include receiving all income from the trust property, including:
The surviving spouse maintains these rights until her death, at which time all of the property is distributed to the beneficiaries of the original trust, and all of the surviving spouse's property is distributed to his or her beneficiaries.
Disadvantages of an AB trust
The AB trust is irrevocable. Once one spouse dies, there cannot be any changes made to the trust. This can create some issues and has even caused friction between the surviving spouse and the named beneficiaries of the trust. As mentioned, the surviving spouse's rights to use the property are limited. Where at one time this used to be the property he or she shared with his or her spouse, to do with as they pleased, this property is now restricted to certain uses and rights.
Settling and distributing property in an AB trust can be expensive and often requires a lawyer and accountant. Furthermore, these tax laws are always changing. You'll need to keep current, or hire a professional to keep you current, on these changes and what they mean for you and your trust. These changes may even encourage you to change or even revoke your trust.
There is a lot of paperwork and bookkeeping required in an AB trust. The surviving spouse needs a tax ID number for the irrevocable trust and must file annual income tax returns on the trust. He or she must also keep records of all the AB trust property.
Is an AB trust is Right for You?
An AB trust is best suited for those married couples who are both over the age of 60 and do not have children from previous marriages. Often times when there are children from previous marriages conflicts arise between the surviving spouse and the deceased spouse's children about who should share in the assets. If you think an AB trust might be for you or you have more questions, you should consult an attorney who can advise you based on your specific circumstances and your specific needs.
Want to Learn More About AB Trusts? Talk to an Attorney
As you're reviewing estate planning options, you may want to strongly consider setting up an AB trust. The best way to determine if an AB trust is best for you is to contact a local tax attorney to discuss your specific situation.