Revocable vs Irrevocable Trust
Do You Need Flexibility In Your Trust?
Trusts are one of the best and most commonly used tools when Estate Planning. A Trust is a legal entity that can “own” assets. Like a Last Will and Testament, a Trust includes instructions for whom you want to handle your affairs and receive your assets when you pass away. Trusts are generally broken down into two categories: Revocable and Irrevocable Trusts.
At Rochester Law Center, we get a lot of questions from people who are comparing a Revocable vs Irrevocable Trust. In this article we will explain the differences between the two to help you understand which may be the best option for your unique situation.
What Is The Difference Between A Revocable Trust vs Irrevocable Trust?
One of the major differences between a Revocable vs Irrevocable Trust, is that Revocable Living Trust can be changed at any time. An Irrevocable Trust, on the other hand, cannot be changed once it is created.
For example, if you create a Revocable Trust and you want to add or remove a beneficiary, you can amend the document at any time instead of having to make an entirely new Trust. Additionally, you can revoke the the entire Trust if you decide that it’s no longer serves your purposes. You can’t do this with an Irrevocable Trust.
Flexibility is one of the many advantages of a Revocable Living Trust you should take into consideration when evaluating a Revocable vs Irrevocable Trust. It’s also why Revocable Trusts are one of the most popular Estate Planning tools.
But if Revocable Trusts are so popular, why isn’t every type of Trust, revocable?
Disadvantages of Revocable Living Trust
The main reason someone may choose an Irrevocable vs Revocable Trust has has to do with creditors and estate tax considerations. Because the assets in your Revocable Trust are still considered to be owned by you, this type of Trust doesn’t protect the assets in your Trust if you’re sued. Additionally, the assets in the Revocable Trust are still considered when Medicaid planning and may be subject to state and federal estate taxes at the time of your death.
What Are The Benefits Of A Revocable Living Trust?
But it is also nice to have the peace of mind that you can easily change your Trust if any circumstances change in the future that would cause you to want to change your original planning considerations.
Another benefit of a Revocable Trust is that, unlike a Last Will and Testament, it allows you to avoid Probate Court. Probate court is the legal process through which the court ensures that, when you die, your debts are paid and your assets are distributed according to the law. It’s good to avoid Probate because it can be very expensive, it takes a long time, and it is a public process. This means that anyone can see the size of your estate, who you owed debts to, who will receive your assets, and when they will receive them.
Since there is generally no Probate Court process when you have a Revocable Living Trust, there is no need to make your assets or your personal wishes public. Since the Trust forgoes the need for Probate, the contents of the transfer stay private. Additionally, most transfers can take place within a matter of weeks instead of potentially years if you were dealing with Probate.
Reduce The Likelihood of Court Challenge
It’s difficult to undermine a Revocable Trust because the person challenging has to prove that the document is invalid or that you were influenced by an outside third party. It is hard to substantiate claims of incompetence with a Trust because you actively manage it your entire life. Additionally, only your beneficiaries that are named inside the Trust are entitled to notice and the right to see the Trust’s contents. For this reason, if you disinherit an heir in a Trust, it’s less likely that they will know to contest the document.
Plan For Disability
It’s not uncommon for an individual to become ill and incapacitated before they pass away. One benefit of a Revocable Living Trust is that it can plan ahead for disability and prevents the need for a conservatorship if you become incapacitated. A conservatorship is when a court-appointed representative is given the authority to manage an incapacitated person’s financial matters for them. However, the court has to appoint someone on your behalf because you are incapacitated. This situation could be less than ideal depending on your family dynamics and circumstances. Avoiding the need for a conservatorship is especially comforting to families in times of difficulty since they do not have to worry about going to court in a time of stress and sorrow to request access to the incapacitated person’s finances.
An Irrevocable Trust is a type of Trust that can’t be modified or revoked after it’s created. The terms of the Trust are essentially permanent. The creator of the Irrevocable Trust, also known as the Grantor, transfers all ownership of their assets over to the Irrevocable Trust. This legally removes all of the Grantor’s rights of ownership of the assets and transfers them to the Irrevocable Trust itself. As a result, the Trust can’t be modified without the permission of the Trust’s Beneficiaries.
There are a variety of Irrevocable Trusts:
Irrevocable Life Insurance Trusts
An Irrevocable Life Insurance Trust is usually created in order to reduce the burden of Estate Taxes. When you create An Irrevocable Life Insurance Trust, you transfer your assets into the Trust and permanently give the assets to the trustee and beneficiaries. This means you no longer own the assets. Since you don’t own the assets, they don’t contribute to the value of your estate, so they may not subject to estate taxes when you die.
AB Trusts are usually created by married couples. With an AB Trust, if one spouse dies, the surviving spouse is still able to use and sell property in the Trust that was owned by their deceased partner. The main advantage of an AB Trust is that it protects the assets of the deceased spouse while still allowing the surviving spouse to use the remaining assets to live.
Asset Protection Trust
An Irrevocable Trust can also be set up to protect assets from creditors. When you create an Asset Protection Trust, you transfer your assets into the Trust and give up control and access to the trust assets. Since you no longer own the assets, your creditors can’t gain access to them either.
Charitable Remainder Trust
This type of trust is a tax-exempt irrevocable trust designed to reduce taxable income. A Charitable Remainder Trust disperses income to the beneficiaries of the trust for a time period specified by the grantor. The remainder of the Trust is then donated to the charity of the grantor’s choosing.
Trusts are one of the best tools to use when Estate Planning. Revocable Living Trusts are the most common and popular Trusts due to their flexibility and the protections they give to your assets and beneficiaries. Irrevocable Trust on the other, can’t be revoked. However, they are very useful for certain circumstances where estate taxes and creditors may be a concern. Estate Planning can be complex and it is usually best to consult with an experienced Trust Attorney when analyzing a Revocable Trust vs Irrevocable Trust.
If you’d like to set up a Trust and you have additional questions about what type of Trust would be best for your unique situation, we can help. Over the past decade, we’ve helped 1,000s of clients set up all manners of Revocable and Irrevocable Trusts, Wills, Powers of Attorney, and Estate Plans.We’d be happy to answer any questions you have. Just give us a call at (248) 613-0007 to schedule your complimentary consultation.
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Written By Chris Atallah - Founder, Rochester Law Center, PLLC
Written By Chris Atallah - Founder, Rochester Law Center, PLLC
Chris Atallah is a licensed Michigan Attorney and the author of “The Ultimate Guide to Wills & Trusts – Estate Planning for Michigan Families”. Over that past decade, Chris has helped 1,000s of Michigan families and businesses secure their futures in all matters of Wills, Trusts, and Estate Planning. He has taught dozens of seminars across the State of Michigan on such topics as avoiding the death tax, protecting minor children after the parents’ death, and preserving family wealth from the courts and accidental disinheritance. If you have any questions, Chris would be happy to answer them for you – just call at 248-613-0007.