When preparing a Family Trust, Spousal Trust or other types of Trusts, you may wish to separate the beneficial ownership of an asset (someone who benefits from an asset while not legally owning it) from the legal ownership of the asset (someone who owns the legal title and manages the asset). This is often done to maintain ownership, control and preservation of the asset in the Trust. In contrast, the benefits from the asset (for example, the income) are used for and flow to the Trust beneficiaries.

There are many provisions to consider when having your legal advisor draft and prepare a trust document, including:

• Spendthrift clauses to protect a Trust beneficiary from themselves
• Clauses to preserve and protect assets or a business from a beneficiary’s spouse
• Discretionary income and capital sprinkling clauses to allow flexible income and capital distributions among Trust beneficiaries
• Power to retain or sell assets of the Trust to ensure the assets are preserved and used as intended for the benefit of the beneficiaries

Trusts can be created either while a person is alive (an inter-vivos trust) or upon his/her death (a testamentary trust). 

Trusts created during lifetime: Also known as an inter-vivos trust, this Trust is established while you are living. Until your trust beneficiary reaches the age of majority or another specified age, the trustee (you or someone you designate) manages the assets. Depending on your situation, an inter-vivos trust can be revocable (you can take back the assets) or irrevocable (you cannot take back the assets). Most inter-vivos trusts are irrevocable because a revocable trust results in negative tax consequences to its creator and prevents the transfer of assets from the Trust on a tax-deferred basis to beneficiaries. 

Trusts created upon death: A testamentary trust may be formed upon or as a consequence of your death. Testamentary trusts may be created in your Will. Any assets placed in a testamentary trust first pass through your estate and would therefore be subject to estate taxes and fees. An example of a testamentary trust is a spousal trust.

There may be lower-cost alternatives to testamentary trusts that may be both simpler and bypass your estate, thereby providing for the efficient transfer of the assets or their value, including:

• Beneficiary designations on life insurance policies 
• Beneficiary designations on segregated fund investments 
• Joint tenancy ownership of assets/investments 

Keep in mind, these alternatives may not provide the same flexibility or protection for the trustee or beneficiary.

When it comes to any financial or estate planning strategy, there will always be pros and cons for both the trustee and beneficiary. Regardless of the Trust you choose, there will be set up and maintenance fees (for example, annual trust tax returns) and potential trustee fees for the ongoing management and ultimate distribution of trust assets.