By Michael Cherewka, Esq.
Trusts allow you to avoid probate, minimize taxes, provide organization, maintain control, and provide for yourself and your heirs. In its most simple terms, a trust is a book of instructions wherein you tell your people what to do, when.
While there are many types of trusts, the major distinction between trusts is whether they are revocable or irrevocable. Let’s take a look at both so you’ll have the information you need:
Revocable Trusts. Revocable trusts are also known as “living trusts” because they benefit you during your lifetime and you can alter, change, modify, or revoke them if your circumstances or goals change.
● You stay in control of your revocable trust. You can transfer property into a trust and take it out, serve as the trustee, and be the beneficiary. You have full control. Most of our clients like that.
● You select successor trustees to manage the trust if you become incapacitated and when you die. Most of our clients like that they, not the courts, select who’s in charge when they need help.
● Your trust assets avoid probate. This makes it difficult for creditors to access assets since they must petition a court for an order to enable the creditor to get to the assets held in the trust. Most of our clients want to protect their beneficiaries’ inheritances.
• Living trusts provide virtually no asset protection. While you are alive, the assets within the trust are considered your property and remain available to creditors, and will count towards available assets for Medicaid.
• There is no tax advantage to using the revocable trust model to transfer assets. The assets remain fully taxable, and are included as part of your estate for federal estate tax purposes.
Irrevocable Trusts: When irrevocable trusts are used, assets are transferred out of the trustmaker’s estate into the name of the trust. You, as the trustmaker, cannot alter, change, modify, or revoke this trust after execution. It’s irrevocable and you usually can’t be in control.
● Irrevocable trust assets have increased asset protection and are kept out of the reach of creditors.
● Taxes are often reduced because, in most cases, irrevocable trust assets are no longer part of your estate.
● Trust protectors can modify your trust if your goals become frustrated.
• Irrevocable means irrevocable! If situations within the family change you will be unable to change or replace beneficiaries. You will be unable to access assets within the trust in the event of financial hardship.