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June 11, 2020

What Are Revocable And Irrevocable Trusts? | Trusts and Estate Planning | Aubrey Law

by Aubrey Harry Ducker Jr. in Elder Law, News

An irrevocable trust is a type of trust where its terms cannot be modified, amended, or terminated without the permission of the grantor’s named beneficiary or beneficiaries. The grantor, having effectively transferred all ownership of assets into the trust, legally removes all their rights of ownership to the assets and the trust.

A revocable trust is a trust whereby provisions can be altered or canceled dependent on the grantor. During the life of the trust, income earned is distributed to the grantor. Only after death does property transfer to the beneficiaries.

This type of agreement provides flexibility and income to the living grantor; he can adjust the provisions of the trust and earn income, all the while knowing that the estate will be transferred upon death.

You can revoke and rewrite the terms of the trust as much as you want. Trusts of the irrevocable kind have the opposite definitions. You (sometimes known as the trustor, grantor, or settlor) set up the irrevocable trust, then relinquish control to the trustee. The grantor cannot step back in and change the terms of the trust or fire the trustee without getting the approval of everyone involved, including the beneficiaries. What is done is done, for the most part.

Revocable Vs. Irrevocable Trusts In Estate Planning

Irrevocable trusts are a bit simpler to understand to most then Revocable trusts. After you place property into an irrevocable trust, you cannot retrieve the property. For all intents and purposes, that property now belongs to the trust, not to you! However, you can place property into the trust and at some point, soon will be able to undo the transfer by removing the property and terminating the trust.

Estate-planning advisers often point to revocable trusts, especially living trusts, as the “perfect way to totally avoid probate.” Putting all your property into a revocable trust can have you in control over that property, and because none of your property is now in your probate estate (that’s, it’s all held in trust) your estate doesn’t have to go through the probate process because your probate estate is “empty!” By attempting to avoid probate, you avert probate costs, put off the lack of privacy, and bypass other disadvantages of the probate process.

Revocable trusts may be amended or canceled at any time if their creator is mentally competent. They do offer the benefit of allowing their creator to cancel them and reclaim property held by the trust at any time before death. However, such trusts do not offer the same protection against legal action or estate taxes as irrevocable trusts.

What Are The Advantages Of A Revocable Trust?

Advantages:

  1. Continuity of Management During Disability
  2. Flexibility
  3. Avoidance of Probate
  4. Availability of Assets at Death

Disadvantages:

  1. Reregistration of Property
  2. May Not Automatically Adapt to Changed Circumstances

Which Is Better Revocable Or Irrevocable Trust?

The first thing to consider is not whether to set up an irrevocable or revocable trust, but how much control you want and need over your property or assets (or both). That will dictate if you should have an irrevocable or revocable trust – if either is appropriate. Estate lawyers and financial advisors say that for many middle-class families, trusts might be an expense that isn’t worth it.

Both trusts work equally well at keeping estates out of probate court, but only an irrevocable trust can also shelter assets from the high costs of long-term care, like nursing home costs or the fees associated with assisted living. A revocable trust does nothing to shelter assets from long-term care costs.

Pros & Cons of an Irrevocable Trust

The advantages of irrevocable trusts result mainly from the value of addressing special circumstances, such as guaranteeing for the continued support of a disabled dependent or ensuring the protection of assets from professional liability.

Pros:

  1. 1.Plan for the preservation and distribution of estates
  2. 2.Lower tax liability
  3. 3.Protect against lawsuits

Cons:

  1. Inflexible structure
  2. Unforeseen changes
  3. Loss of control over assets

What Is The Difference Between Irrevocable And Revocable Trusts?

A revocable trust and living trust are separate terms that describe the same thing. It is a trust in which the terms can be changed at any time. An irrevocable trust describes a trust that cannot be modified after it is created without the consent of the beneficiaries.

The terms of an irrevocable trust, in contrast, are set in stone the minute the agreement is signed. No changes may be made to an irrevocable trust. However, there are exceedingly rare circumstances.

Is It Possible To Change From Revocable To Irrevocable Trusts?

Yes! If a trust is revocable it can generally be amended and turned into an irrevocable trust. A contingency is a condition that needs to be met before funds will be allowed to be distributed to the beneficiary from the irrevocable trust. The trust agreement may list any specific contingencies that apply to the irrevocable trust. This might include requiring the beneficiary to graduate from college before receiving funds. The Settlor may specify that the beneficiary must independently produce a certain amount of investment capital and the trust will match that amount.

The trust may specify that a beneficiary must achieve a certain level of educational proficiency, such as a master’s degree or doctorate. This is before a specified amount of funds are distributed to the beneficiary. So, the irrevocable trust can help to ensure that trust fund recipients pursue certain life goals rather than sitting around waiting for a handout.

Orlando Trust Attorney Aubrey Harry Ducker Jr.

We understand how simple estate planning mistakes or omissions can quickly turn into a disaster, resulting in litigation or probate. We aim to help our clients avoid common estate planning errors, thus protecting their assets, and effecting the efficient transfer of assets to the intended beneficiaries.

If you are dealing with any type of family law case, contact Attorney Aubrey Harry Ducker Jr. to discuss how our attorneys can help you with your Trust Administration & Litigation, Probate Administration & Litigation, and Collaborative Divorce case. Call us at (407) 647-7887 or give us a message. You can also visit the offices of Attorney Aubrey Ducker Jr. Aubrey Ducker Jr. serves Orlando and surrounding areas.