Whether in Massachusetts or elsewhere, a basic fact to remember is that trusts must be funded before they can do anything. However, an unfunded trust is not void. For example, a revocable trust that is unfunded will remain valid but inoperative until it is funded. This sometimes does not happen until the settlor dies and his/her pour over provision in the will kicks in and sends specified assets to the trust. That is an ironic result because one of the purposes of creating the revocable trust is to avoid probate.
The point is that people forget or neglect to fund their trust after it is established. Without funding, it will not do what was intended. It is true, however, that some trusts must wait for certain events prior to being funded. An irrevocable life insurance trust will not be funded until the insured’s death.
The benefits of the trust are therefore dependent on ultimate funding of the trust. For trusts that were intended to be funded right away, the settlor should take the appropriate action in a timely manner and fund the trust. This will take some foot work in contacting one’s broker or funding source, and one or more visits to the bank. Problems can arise when the settlor of the trust has become incompetent to conduct his/her own financial affairs.
In that event, there is hopefully a power of attorney created pursuant to Massachusetts law and executed by the settlor when still healthy. If not, procedures may be required to appoint a guardian or conservator for the incompetent person. If the settlor dies before the trust is funded, there will hopefully be a pour over provision in the will and beneficiary designations. If not, the original goal and purpose of the trust will be defeated, and all the time and effort put into it will be lost. If one encounters an unfunded revocable trust and doesn’t recall its purpose, it is likely time to contact the estate planning attorney for a consultation to update matters and refocus on getting the estate plan properly carried out.
Source: nwtimes.com, “Estate Planning: Trusts can exist even without funds“, Christopher Yugo, Sept. 10, 2017