So you’ve been doing your estate planning homework. You’ve learned that perhaps you should have a trust in addition to a Will.
But then you hear that there are different types of trusts!
In this blog post I’ll help you understand the difference between the two main trusts that you may want to consider: the revocable trust and irrevocable trust.
A revocable trust is a trust created during your lifetime. You are the creator, or grantor, of the trust and you are also often its trustee. Your assets (such as your real property, bank accounts, investment accounts, etc.) are re titled into the name of the trust.
You retain control
Once your assets are re-titled into the name of the trust, as trustee, you now oversee and manage the trust assets. Essentially, it is merely change on paper. You continue to retain control over all of your assets. The trust is “revocable” meaning you can amend it or even revoke it entirely at any point in your lifetime.
The revocable trust also allows you to name a successor trustee so that at some point if you are unable to manage your assets, someone else whom you trust can step in and do it for you.
The trust provides for a distribution provision upon your passing – similar to a Will – which states whom you wish to receive the assets in the trust when you have passed away. The main difference between a revocable trust and a Will, however, is that upon your passing, the assets in your trust avoid probate.
A Will only controls assets held in your name alone – not assets that are jointly held, have designated beneficiaries, or are assets held in a trust. Consequently, there is no prolonged probate process when you pass away so long as you have properly titled all your individually held assets in your revocable trust.
An irrevocable trust is also a trust created during your lifetime. You are the grantor of the irrevocable trust, but you cannot serve as trustee. You must name another trusted individual to serve as trustee.
But why can’t you serve as trustee of your own trust?
Preparing for long term care
An irrevocable trust is also considered an “asset protection trust.” This means that you are transferring assets into this trust to not only avoid probate, but to also start the process of protecting assets in case of a future long term care crisis.
You lose control
The goal is that the transfer date of the assets will be beyond the five year look-back period under the Medicaid rules should there be a need to apply for Medicaid benefits. The State of Connecticut’s position is that if you have control over the assets (that is, if you are trustee of your own trust) then those trust assets are available to you to pay for your care should a long term care crisis unfold.
The bottom line is that you lose control over your assets in an irrevocable trust. You are entrusting someone else to act as trustee in your best interest.
You cannot revoke
As stated in its name, you cannot revoke an irrevocable trust. As grantor of the trust, however, you do retain certain powers such as changing the beneficiaries of the trust or changing your trustee(s).
For some, the creation of an irrevocable trust is a big decision that must be weighed against many other factors.
Considering whether to create a trust is not an easy decision. Choosing the right type of trust to set up is even more challenging if you don’t have the right information. Should you have a revocable or an irrevocable trust? Make sure that you meet with a qualified estate planning and elder law attorney to help you make the right choice.
Not sure what the difference is between a Will and a trust? Click here to hear Paul explain it.