There are many different trust types for estate planning purposes; the most common are revocable and irrevocable. While there is some similarity, these two major categories of trusts have different purposes in your estate plan. Both can substitute for a last will and testament as an alternative way to distribute property, though a trust and a will often exist concurrently. Whether a revocable or irrevocable trust works better for your estate plan depends on what you need the trust to do for you.
The most striking difference between the trust types is as defined in the names. A revocable trust permits changes, amendments, and revocations at any time while you are alive and mentally capable of doing so. In contrast, an irrevocable trust does not permit amendments or revocations of any type while you are alive. The only changes to the terms of the trust are as the trust agreement itself defines and allows.
Both trusts, when properly implemented, permit the bypass of the probate process. A revocable and irrevocable trust will survive your death, and your named successor trustee will be able to distribute trust property free from court interference after you die. The trustee may only distribute assets that the trust owns in title to avoid probate.
The process is slow and time-consuming, taking anywhere from six months but in most instances one to three years to complete. Although it varies by state, probate can be costly as the court takes a portion of the gross estate in probate fees even before the deceased's debts are paid. The fee can be as substantial as ten percent. Finally, probate is a public process, and all documents and information will become part of the public record. Estate debts and assets become public records, as are the distributions of assets. Anyone who cares to look up this public record can know which beneficiary received what and often make targets of inheritors for scams or burglaries.
Both trust types help you control property after you die with conditions you outline as to how to use trust assets once you pass away. Conditions are usually age restrictions, punishments for bad behavior, and incentives to promote good behavior. These conditions must not violate public policy. Revocable and irrevocable trusts can set up conditions regarding distribution while you are alive. However, in a revocable trust, if you create the trust, control the trust as trustee, and are the trust beneficiary, you will NOT receive protection from creditors or others who may have a claim against you. This lack of credit protection in a revocable trust is significantly different from an irrevocable trust.
An irrevocable trust can prevent the distribution of assets to certain entities or people, like a long-term care facility or a creditor. The irrevocable trust must be in place and active before protection from the debt accrued to be effective or be within certain time limits to qualify for government programs such as Medicaid. The irrevocable trust creates a legal wall separating you and your assets permitting the shielding from creditors or long-term medical care costs. Asset protection is one of the most useful aspects of an irrevocable trust.
An irrevocable trust is also a vehicle to shield your multi-million dollar wealth from excessive federal estate taxes to preserve generational wealth. 2022 tax exemptions include:
In summary, both trust types can provide estate planning benefits depending on your needs.
Trust types in estate plans are as varied as those individuals seeking to enact them. To best protect your interests and those of your beneficiaries, contact us to schedule a consult with one of our qualified estate planning attorneys who can explain the type of trust that best suits your needs.
Still have questions?
Centrally Located in Brighton
near Cobbs Hill:
1399 Monroe Avenue,
Rochester, NY 14618
Map & Directions
Subscribe now and get our FREE Guide, "The Top Eight Mistakes People Make with Medicaid Qualification"
Rochester Elder Law
All Rights Reserved
Legal Disclaimer: The information on this website is for general purposes only and is not legal advice. Content may change without notice. Please consult an attorney for guidance on your specific situation. Contacting us does not establish an attorney-client relationship. Do not send confidential information until a formal attorney-client relationship is established. This site may contain attorney advertising. Prior results do not guarantee similar outcomes. By using this site, you agree to this disclaimer.