Which is Best for Me: A Revocable or Irrevocable Trust?
By: Lauren C. Enea, Esq.
Trusts are excellent vehicles for probate avoidance, management of assets, ease of disposition of funds to one’s beneficiaries upon death, asset protection planning and estate tax planning. That being said, it is often difficult to know what type of Trust one needs! This article will discuss the basic differences between Revocable and Irrevocable Trusts.
A Revocable Living Trust (RLT) is a writing wherein the Trust Creator(s) (also known as a “Grantor(s)”) create a Trust for their benefit where they can also be the sole Trustee of the RLT. During the lifetime of the Creator they have full control over the real property, bank accounts, investments and any other assets that have been titled in the name of the RLT, along with the power to amend, modify and/or revoke the RLT.
The most significant advantage of an RLT is that it avoids the need for Probate with respect the assets titled to the RLT upon the Creator’s death. Probate is the process of admitting one’s Last Will and Testament in the Surrogate’s Court in the County where the decedent resided in order for it to be deemed legally valid after one’s passing in order to allow the Executor to have access to assets titled to the decedent’s name alone and to allow the Executor to pay bills and distribute the funds to the beneficiaries named in the Will. The probate process can take approximately nine (9) months to over a year to complete. There are also filing fees to be paid to the Court, legal fees to attorneys and one’s estate is then a matter of public record.
A RLT, and the diligent transfer of one’s assets (non-IRA/non-Retirement) to said trust, can accomplish everything a Last Will and Testament can while avoiding the expenses, difficulties and delays associated with the Probate process. It should be noted that IRAs, 401Ks, Annuities and Life Insurance should have named beneficiaries and alternate beneficiaries so as to avoid Probate. Additionally, any estate tax planning that can be done in one’s Last Will and Testament can be done in a RLT.
In comparison, Irrevocable Trusts are trusts that cannot be amended and/or revoked. There are a number of types of Irrevocable Trusts, but most commonly they are used as a planning tool to transfer assets for the benefit of another without making an outright gift to said individual, or for purposes of Medicaid Planning and/or Estate Tax Planning. An Irrevocable Medicaid Asset Protection Trust (MAPT) allows an individual to protect one’s life savings (non-retirement savings) and home from the cost of long-term care, while granting the Trust Creator the right to continue to reside in their home and still benefit from the income generated by the assets transferred to the Irrevocable Trust. With this type of Trust the Trust Creator cannot be the Trustee of the Trust. Typically, one’s children and/or loved ones are named as Trustees. The transfer of assets to a MAPT creates a five (5) year penalty period for Nursing Home Medicaid and, as of the time of this writing, would create a two and a half (2 ½) year penalty period for Home Care Medicaid for applications filed after March 31, 2024. After the penalty periods run, the funds held by the trust are protected and no longer countable assets for Medicaid eligibility purposes and Medicaid can no longer have a claim or lien on said assets.
Additionally, an Irrevocable Trust can be used to transfer assets for the benefit of a loved one, friend, child and/or grandchild so that the assets are not controlled by the Trust’s beneficiary, but can be used by the Trustee of the trust for the beneficiary’s health, education, maintenance and support. This is an excellent tool often used to lower one’s taxable estate and provide for the education and future needs of a grandchild and/or child.
As you can see, there are a number of excellent reasons to consider a Revocable and/or Irrevocable Trust!
* Lauren C. Enea, Esq. is a Senior Associate at Enea, Scanlan & Sirignano, LLP. She concentrates her practice on Wills, Trusts and Estates, Medicaid Planning, Special Needs Planning and Probate/Estate Administration. She believes that it is never too early or too late to start planning for your future and she enjoys working with individuals to ensure that their plan best suits their needs. Ms. Enea received a B.S. in Business Management from Quinnipiac University graduating Magna Cum Laude and a J.D. from the Pace University School of Law graduating Summa Cum Laude. She is admitted to practice law in New York and Florida. She can be contacted at (914) 269-2367 or www.esslawfirm.com
