For most clients, deciding between creating irrevocable trusts and revocable trusts depends on the need for retaining control of assets. There are, in fact, some very distinct differences that should be considered as you make the decision. Trusts have been around for a very long time, but they’ve only really begun to gain mainstream acceptance in the last several decades. When it comes to choosing between an irrevocable and a revocable trust, our Charlotte trust attorneys can help you decide which option is best for your needs.
The similarities between irrevocable and revocable trusts
At their core, both trust types share many things in common, in terms of basic structure and fundamental benefits. On the structural side, the irrevocable and revocable trusts must have the same elements that every trust requires, for example, both require a grantor who makes the trust.
That grantor is also responsible for providing the assets used to fund the trust, so that it can accomplish its intended mission. Both trust types must have someone designated to serve as the trustee. The trustee is the person who is responsible for managing the trust and its assets, preserving those assets’ value, and distributing them to any named beneficiaries, as instructed, by the terms of the trust.
The differences in irrevocable and revocable trusts
Simply put, it’s all about the ability to revoke the trust once it’s created – or the inability to revoke the trust. In the case of the revocable trust, the name says it all. This trust can be revoked or changed by the person who made it at any time while he’s still alive. That has some important effects on what the trust can accomplish, of course, and we’ll cover that in a bit.
The irrevocable trust has a similarly self-explanatory name, and cannot be canceled or changed once it’s created. Naturally, that attribute impacts its usefulness as well. These two types trusts have their differences as well. Those differences become clearer as we evaluate the respective benefits that each type of trust can provide for your estate planning effort.
Advantages of Revocable Trusts
The revocable trust’s benefits have been widely discussed in recent years – although not always as accurately. The basic benefits are essentially those provided by any living trust. With a revocable trust, you can avoid probate for trust assets. Since trust assets can be distributed to heirs by the trustee, there is no need for a court-supervised probate.
A revocable trust can preserve your privacy by keeping the settlement process out of the courts. Revocable trusts provide an orderly way to distribute assets, and can even ensure that your heirs receive distributions in less time than they might experience with probate. The revocable trust enables you to maintain more control over your assets by naming yourself as the trustee, and you always have the option of ending the trust if it no longer suits your needs.
Advantages of Irrevocable Trusts
The irrevocable trust has its own benefits, and some of them mirror those of the revocable variety. For example, an irrevocable trust also keeps trust assets out of probate and preserves privacy. It provides a reliable mechanism for transferring assets when you die. It does not, however, provide you with the ability to exercise control over those assets. Once you relinquish ownership to the trust, you can neither exercise control over the assets nor reclaim them by dissolving the trust.
Since the assets are beyond your reach and no longer part of your estate, creditors cannot gain access to them in lawsuits or other actions. The IRS no longer counts those assets as part of your estate either, and that can mean big reductions in your estate tax liability. If you need to apply for Medicaid benefits for nursing home care in the future, the assets in an irrevocable trust might not be counted when your eligibility is calculated. If you have questions about any of these issues ask our Charlotte trust attorneys.
Our trust attorneys can advise you on which type of trust you should choose
Neither type of trust is inherently superior to the other, as they both have their role to play in the estate planning process. In fact, many people have revocable and irrevocable trusts within their estate plans, with each type used to accomplish different important objectives. That’s why comparing the irrevocable vs revocable trust can be so difficult for so many people.
Join us for a FREE seminar today! If you have questions regarding revocable and irrevocable trusts or any other estate planning matters, please contact the experienced attorneys at The Potter Law Firm for a consultation. You can contact us either online or by calling us at (704) 944-3245 or for individuals in Kentucky at (606) 324-5516 (Ashland, KY) or at (859) 372-6655 (Florence, KY).
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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