Revocable vs. Irrevocable Trusts

To Change or Not to Change a Trust

Living Trust and Estate Planning Documents. DNY59/E+/Getty Images

When it comes to understanding trusts, knowing the difference between revocable and irrevocable trusts is crucial. If you ask for a revocable trust and get an irrevocable one, or vice versa, the legal and tax consequences will be significant.

Revocable Living Trusts

A Revocable Living Trust, also known as a Revocable Trust, Living Trust or Inter Vivos Trust, is simply a type of trust that can be changed at any time.

In other words, if you have second thoughts about a provision in the trust or change your mind about who should be a beneficiary or trustee of the trust, then you can modify the terms of the trust through what is called a trust amendment. Or, if you decide that you don't like anything about the trust at all, then you can either revoke the entire agreement or change the entire contents through a trust amendment and restatement.

Since Revocable Living Trusts are so flexible, why aren’t all trusts revocable? Because the down side to a revocable trust is that assets funded into the trust will still be considered your own personal assets for creditor and estate tax purposes. This means that a revocable trust offers no creditor protection if you are sued, all of the trust assets will be considered yours for Medicaid planning purposes, and all assets held in the name of the trust at the time of your death will be subject to both state estate taxes and federal estate taxes and state inheritance taxes.

So why should you use a Revocable Living Trust as part of your estate plan? For three important reasons:

  1. To plan for mental disability - Assets held in the name of a Revocable Living Trust at the time a person becomes mentally incapacitated can be managed by their Disability Trustee instead of by a court-supervised guardian or conservator.
  1. To avoid probate - Assets held in the name of a Revocable Living Trust at the time of a person’s death will pass directly to the beneficiaries named in the trust agreement and outside of the probate process.
  2. To protect the privacy of your property and beneficiaries after you die - By avoiding probate with a Revocable Living Trust, your trust agreement will remain a private document and avoid becoming a public record for all the world to see and read. This will keep the details about your assets and who you have decided to leave your estate to a private family matter. Contrast this with a Last Will and Testament that has been admitted to probate - it becomes a public court record that anyone can see and read.

Irrevocable Trusts

An irrevocable trust is simply a type of trust that can't be changed after the agreement has been signed, or a revocable trust that by its design becomes irrevocable after the Trustmaker dies or after some other specific point in time.  However, refer to Can an Irrevocable Trust Be Changed?

for more information about certain situations in which an irrevocable trust may be changed.

With the typical Revocable Living Trust, it will become irrevocable when the Trustmaker dies and can be designed to break into separate irrevocable trusts for the benefit of a surviving spouse, such as with the use of AB Trusts or ABC Trusts, or into multiple irrevocable lifetime trusts for the benefit of children or other beneficiaries.

Irrevocable trusts can take on many forms and be used to accomplish a variety of estate planning goals:

Continue Reading...