What Type of Trust Do You Need?

Revocable or Irrevocable?

What Is a Revocable Living Trust?

Revocable trusts are an alternative for wills. After the grantor dies, the assets in the trust are transferred to the named beneficiaries.

The distribution of revocable trust assets typically occurs outside of the court system (as in the case of wills). You (grantor) can amend a revocable trust at any time. Revocable trusts allow their creators the freedom to make changes during their lifetime instead of irrevocable trusts that cannot be changed or revoked after creation.

Assets in revocable trusts remain within the reach and control of the grantor. These trusts provide flexibility and income for the grantor during their lifetime.

After the grantor’s death, the property in the trust is transferred to the beneficiaries, typically heirs. Typical changes that a grantor can make to a revocable trust include removing beneficiaries, naming new ones, and modifying trust terms.

Given this flexibility, why aren’t all trusts revocable?

There are a few disadvantages to revocable trusts, which is the reason they are usually not used. Revocable trusts are not protected from creditors like irrevocable trusts because the trustee retains so much control over the assets in them.

A lawsuit against the creator of the trust could result in the liquidation of the trust assets. As well, assets held in revocable trusts are subject to state and federal estate taxes.

Even so, the revocable trust serves a critical purpose.

Revocable trusts can be used to circumvent the probate court process. Probate is a court procedure leading to the appointing of a personal representative and the distribution of assets.

There are many reasons to avoid probate, including its burdensome, costly, time-consuming nature, and public nature. Putting assets into a revocable trust allows you to distribute them however you wish without the court’s interference.

In addition to protecting your finances from being taken to court if incapacitated, a revocable trust also protects you from conservatorship.

What is an Irrevocable Trust?

Irrevocable trusts cannot be amended, terminated, or modified without the beneficiary’s explicit consent. As a result, by transferring all ownership into a trust, the grantor loses all rights to ownership over those assets.

In most cases, an irrevocable trust is established for tax reduction or elimination in estate planning matters. This kind of trust eliminates all aspects of ownership of trust assets, effectively removing them from the grantor’s taxable estate.

Moreover, the grantor is relieved of tax liabilities associated with income derived from the assets. However, when a grantor is also the trustee of the irrevocable trust, this erodes the trust’s tax advantages in many jurisdictions. You can invest any asset into an irrevocable trust. Assets held by this trust can include the donor’s home, a business, investment vehicles, cash, and a life insurance policy.

Irrevocable trusts are complicated by nature. It is best to hire an estate attorney for help in their establishment and administration. In the event of a lawsuit, an irrevocable trust protects the assets of the trustor. The property cannot be reclaimed once it is transferred into an irrevocable trust, so creditors or ex-spouses cannot reach it.

In contrast to older versions of irrevocable trusts, today’s trusts feature many provisions not present in them previously. As a result, trust management and trust asset distribution are much more flexible. For instance, assets can be transferred to a new trust for better protection and management through a decanting provision. Trusts with options to change the state of domicile can also deliver more significant tax benefits or save money on other expenses.

Irrevocable Trust vs. Revocable Trust

Is a Revocable Trust Better Than an Irrevocable Trust?

Revocable trusts: benefits and drawbacks

An essential benefit of a revocable trust is that it secures a grantor’s wishes if they become incapacitated. It saves them from conservatorship.

In addition to avoiding probate, revocable trusts benefit beneficiaries by granting more control of assets without the necessity for probate. But revocable trusts aren’t without drawbacks; most notably, there are no tax benefits or creditor protection with the living trusts.

Federal and state income tax benefits are, of course, the most significant unique proposition of trusts. However, you can only leverage these exemptions if you entirely remove assets from your estate to the trust and “give up” the right to control them in the trust.

As exposed earlier, a revocable trust’s grantor has the power to modify its terms. The assets are in the trust but still legally considered part of their estate. To wit, the grantor cannot leverage the trust to reduce or avoid taxes or protect assets from creditors.

Irrevocable trust: benefits and drawbacks

The fact that revocable trusts do not offer tax benefits for their grantors, experts say, makes an irrevocable trust one of the best options for saving on taxes.

Unlike revocable trusts, irrevocable trusts offer creditor protection. If you own an asset under your own name, creditors, including ex-spouses, and the taxman, can take it.

But because your assets in an irrevocable trust are not in your name, it provides hurdles to creditors that may lead them to settle the claim for a mere fraction of the original amount.

Even though saving on taxes and protecting assets from creditors are both very beneficial, some people dislike irrevocable trusts because it makes them give up control over their assets.

It may not be appealing to have your money “locked up” and unable to access it except at the trustee’s discretion. You can choose a revocable trust may be the best option if:

You want to keep control of your estate while avoiding probate. You can protect your assets from probate court with a revocable trust, just as you can with an irrevocable trust. However, with the former, you can retain control over the assets and make the necessary changes during your lifetime.

You can choose an irrevocable trust if you want to:

Reduce estate tax. Unlike revocable trusts, irrevocable trusts permanently transfer the estate of the grantor to the trust. Because an irrevocable trust is not considered part of your estate, it cannot be taxed as such.

Protect assets. Irrevocable trusts are not subject to personal liability since they do not belong to you. They provide a way to protect assets from your liabilities or your spouse and beneficiaries’ legal and financial obligations.

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Hess-Verdon is an experienced team of estate planning attorneys in California. Contact us for cutting-edge legal help in estate planning, trust administration, litigation, and dispute resolution.