What's a Totten Trust and does it protect assets?

A fellow caregiver asked...

What's a Totten Trust and how does it work? My parents have recently been talking about getting all their affairs in order--prepaying funeral expenses and that kind of thing. A friend mentioned something called a Totten Trust, which she said is a good way to set aside money for something like this but in a way that keeps the government from taking it if they later have to spend down their assets to qualify for Medicaid. Is that good advice--and can you use a Totten Trust to protect assets?

Expert Answer

Steve Weisman hosts the nationally syndicated radio show A Touch of Grey, heard on more than 50 stations, including WABC in New York City and KRLA in Los Angeles. He is a practicing lawyer specializing in estate planning and is admitted to practice before the United States Supreme Court. He's a public speaker and commentator who has appeared on many radio and television shows throughout the country, and he's the legal editor of Talkers magazine, the preeminent trade publication of talk radio. His latest book is The Truth About Avoiding Scams.

A Totten Trust is somewhat of a misnomer because it is a trust in name only.

In reality, there is no trust document. Rather, it is an informal trust arrangement accomplished by titling a bank account or other asset in the fashion of "Homer Simpson in trust for Marge Simpson." This means that during Homer's lifetime he has total control over the account and complete access to it. However, at his death, the property passes automatically and outside of probate to Marge.

The asset still may be subject to estate taxes if the estate is large enough, but it does not have to go through probate -- Marge would have immediate access to the account.

In certain specific instances, Totten Trusts can be a good alternative to having someone added to the account as a joint owner. However, the vagueness of the informal trust does not make this a very good choice, except in limited circumstances for small amounts of money.

In most cases, you would be better off by actually setting up a living trust. With a living trust, you can approve the trustee and beneficiary during your lifetime, as well as precisely provide for how you would want the property to pass at your death.