Revocable vs. Irrevocable Trusts

A living trust can be revocable or irrevocable, says Yahoo Finance’s recent article entitled “Revocable vs. Irrevocable Trusts: Which Is Better?” It is certainly true that not everyone needs a trust, and there are many different types of trusts you can establish. But, when considering a trust, clients need to consider the pros and cons of revocable versus irrevocable trusts.

Revocable Trust

A revocable trust is a trust that can be changed or terminated at any time during the lifetime of the trustor (i.e., the person making the trust). This means you could:

  • Add or remove beneficiaries at any time
  • Transfer new assets into the trust or remove ones that are in it
  • Change the terms of the trust concerning how assets should be managed or distributed to beneficiaries; and
  • Terminate or end the trust completely.

When you die, a revocable trust automatically becomes irrevocable and no further changes can be made to its terms.

The big advantage of choosing a revocable trust is flexibility. A revocable trust allows you to make changes and to grow with your needs. Revocable trusts can also allow your beneficiaries to avoid probate when you die.  Most clients use revocable trusts during their lifetimes, although they might establish irrevocable trusts for other people or to address specific circumstances.

However, a revocable trust doesn’t offer the same type of protection against creditors as an irrevocable trust. If you’re sued, creditors could still try to attach trust assets to satisfy a judgment. The assets in a revocable trust are part of your taxable estate and subject to federal estate taxes when you die, which is usually a good thing, but in some assets isn’t sufficient tax planning.  It also provides no advance asset protection for Medicaid.

Irrevocable Trust

An irrevocable trust is permanent. If you create an irrevocable trust during your lifetime, any assets you transfer to the trust stay in the trust. You can’t add or remove beneficiaries or change the terms of the trust.

Irrevocable trusts are commonly used for creditor protection or tax planning.  There are times, such as when considering long-term care Medicaid in a nursing home, or reducing the size of your estate for estate tax purposes, that you want the asset not in your name and out of your personal control.  The irrevocable trust can achieve that by having the trustee own it instead of you.

Irrevocable trusts created during your lifetime are often done in addition to a revocable trust so that you achieve the particular benefits of an irrevocable trust only for that property which needs the advantage.

Irrevocable trusts are more commonly something you set up to be effective at your death.  We’ve written extensively on this, but it is extremely common to leave your children’s inheritance to them in irrevocable trusts that set the rules by which they benefit from the trust and provide creditor and divorce protection to the beneficiary.  This also works with spendthrift beneficiaries and similar trusts are used when a beneficiary has a disability and is using government benefits.

See here for more:  https://galligan-law.com/how-do-trusts-work-in-your-estate-plan/  

It is worth noting that irrevocable trusts, despite their name, sometimes can be revoked, changed or you can remove property from them.

For example, irrevocable trusts might have a power of substitution allowing you to take out property as long as you put equal value property back in.  Irrevocable trusts can sometimes be revoked or changed by the agreement of all parties (including beneficiaries) although that doesn’t work if minors are involved.  Irrevocable trusts that are broken and no longer serve their original purpose can also sometimes be fixed by a process called decanting.  It involves creating a new trust and “decanting” the assets of the first into the second.

If you are using irrevocable trusts you are working with very sophisticated tax and creditor laws, so you’d have to check with your attorney if those options will fit with the trust you are creating.  It is also not something we like to rely on, which is one of the reasons irrevocable trusts are used less.

Speak with an experienced estate planning or probate attorney to see if a revocable or an irrevocable trust is best for you and your goals.

Reference: Yahoo Finance (Sep. 10, 2022) “Revocable vs. Irrevocable Trusts: Which Is Better?”

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Leaving Inheritance Unequally to Heirs

Clients occasionally ask to create estate plans leaving property to beneficiaries who are not their natural heirs (next of kin). When they do, it might be because of estrangement, or because of the involvement of that heir’s family (think in-laws), because one of the heirs doesn’t need the money, because of how they might spend once received or because they do not have close natural heirs.  When it comes to estate planning, equal isn’t the same as fair, explains the article “Are Unequal Inheritances Fair?” from Advisor Perspectives.

The first will I ever drafted as a law student had this issue.  The elderly mother wanted to leave everything she had to two of her four children.  The two she wanted to provide for lived far away, had very few assets, but still helped mom with her bills or spent time with her.  The two remaining children were much better off, but also spent far less time with her despite living in the same city.

She loved her children equally, but recognized that the value of the inheritance was different for the children who supported and who were in need compared to the two who did not support her and were self-sufficient.  In her case, I drafted the will leaving everything to the two supportive daughters, and we used ethical will language to explain the reason why she didn’t leave everything to all four. (see here for info on an ethical will: https://galligan-law.com/estate-planning-attorneys-recommend-that-clients-consider-writing-an-ethical-will-or-legacy-letter/)

But, that solution doesn’t always work, especially where the heirs don’t get along, or would become suspicious of each other.  This is exacerbated where a child is being cut out for reasons like substance abuse or family difficulties.  So, here are a few things to consider when removing a natural heir from your estate plan or substantially reducing their share.

Be Direct. Clients often are worried about hurting the feelings of the heir they cut out, and so don’t want to be direct.  I handled an estate of a client who reduced the share of one child compared to the other.  This was a very complicated estate, and the attorney who prepared the last estate plan made a subtle change in a very complex document so that one child wouldn’t get a particular trust fund and the other would.

The estate turned out better than anticipated, but the problem with a subtle cutting out is the child doesn’t believe its true or that is what their parent wanted.  They don’t believe mom or dad made this choice, and instead they believe the other child (who typically is going to be the executor in this situation) is cheating them, unduly influenced them, the attorney made a mistake or that mom or dad lost capacity.  This leads the fight directly from one beneficiary to the other.

Instead, being clear and direct about your intentions directs the beneficiary’s focus on what you wanted (which is where estate planning should be focused) instead of looking for ways they wronged.  The law allows you to leave the property to whom you want, so better to be clear about your intentions then to leave your family to fight over it.

Use a Trust. The value of the trust in this situation varies a bit amongst the states, but generally stated, using a trust is better than a will when not leaving everything to your natural heirs.  Wills are very public, and depending on your state may require notice to your heirs, whether or not they are a beneficiary.  Trusts can both make the administration more private and can avoid fighting.  Trustees also often have more power to close the trust or handle disputes than an executor who is handling a will.

Leave Property in a Different Way. In some cases, clients want to remove a beneficiary because of a concern over the child’s receipt of assets.  For example, if a child is bad with finances, has creditors, a messy marriage, substance abuse issues and so on.  It is a situation where the emphasis isn’t “I want to leave everything to two of my three children,” but an instance where “I don’t want to give one money, so it has to go to the other two.”   In this case, it’s possible that you could still leave the difficult child an inheritance, but do so in a way to protect the inheritance and the beneficiary from the money.

For example, I have regularly written blogs about leaving inheritance in trust for a beneficiary and we regularly draft estate plans using them.  If the problem is spending habits or addiction, you could leave the inheritance to a child in a trust and leave someone else in charge of the trust.  That trustee could spend the money on their behalf so that the beneficiary receives the value of the inheritance without direct control, which is where the problems arise.

Similarly, beneficiaries who have disabilities and may use government benefits could receive a trust which keeps the assets outside of their control (so not countable for their benefits) but is still available should they need it.  Likewise, leaving property in a trust to a child where you are concerned about divorce helps protect the property by keeping it separate from the marriage.

You can see this article for more details and ideas on how trusts help beneficiaries:  https://galligan-law.com/protecting-inheritance-from-childs-divorce/

In sum, the reason a client wants to remove a beneficiary might be addressable in a different way so that they can still receive their inheritance.

None of these are perfect solutions, but are worth considering for your family if you wish to remove or reduce an heirs share.

Reference: Advisor Perspectives (Aug. 22, 2022) “Are Unequal Inheritances Fair?”

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Will Making a Gift Conflict with Medicaid?

People usually make gifts for three reasons—because they want to provide for the recipient, because they want to protect assets, or minimize tax liability. However, gifting in one’s elder years can have expensive and unintended consequences, as reported in the article “IRS standards for gifting differ from Medicaid” from The News-Enterprise, especially with Medicaid.

As a quick aside, if you’ve read any of my articles on gifting, you know I preach caution.  Way too many people make gifts because of a perceived benefit, and don’t consult a professional to determine whether there is a benefit.  That said, for the purposes of this article, I’m going to focus on Medicaid gift tax consequences as opposed to all of the other pros and cons in making gifts.

A primary reason for most people to make gifts is tax planning.  The IRS gift tax becomes expensive, if gifts are large. However, each individual has a lifetime gift exemption and, as of this writing, it is $12.06 million, which is historically high. A married couple may make a gift of $24.12 million. Most people don’t get anywhere near these levels. Those who do are advised to do estate and tax planning to protect their assets.

The IRS also allows an annual exemption. For 2022, the annual exemption is $16,000 per person. Anyone can gift up to $16,000 per person and to multiple people, without reducing their lifetime exemption.

However, the more real danger is the effect of a gift on Medicaid or long-term care benefits.  People, and frequently financial advisors and non-attorney professionals, often confuse the IRS annual exclusion with Medicaid requirements for eligibility. IRS gift tax rules are totally different from Medicaid rules.

Medicaid does not offer an annual gift exclusion. Medicaid penalizes any gift made within 60 months before applying to Medicaid, unless there has been a specific exception.  The Veterans Administration may also penalize gifts made within 36 months before applying for certain VA programs based on eligibility.

For Medicaid purposes, gifts include outright gifts to individuals, selling property for less than fair market value, transferring assets to an irrevocable trust, or giving away partial interests.  Some gifts are expressly permitted, such as gifts between spouses.  Also, most states have some species of an exception for very small gifts, but that definition varies widely.

For example, in Texas there is no exception for small gifts.  However, Medicaid staff is instructed not to inquire into potential gift transactions for less than $200 total in a month.  That doesn’t create a strategy of gifting typically, but it avoids Medicaid penalties when Grandma gives $50 to a grandchild for their birthday.

The penalty for gifting in Medicaid is a penalty period.  In short, Medicaid looks at your eligibility, and once otherwise eligible will calculate a penalty period by dividing the value of your gifts by a penalty rate based upon the daily average cost of a nursing home in the year of the gift.  So, if you gave away $50,000 and the penalty rate is $250 per day, you are ineligible for 200 days.  During this time you’ll have to find a way to pay yourself before Medicaid will.

So, gifting where Medicaid may be an issue in the future often has very real and dangerous consequences.  That doesn’t mean gifting can’t be useful in Medicaid, as sometimes gifting is an express strategy for eligibility, but anyone making gifts should do so at the advice of an attorney.

Reference: The News-Enterprise (Aug. 6, 2022) “IRS standards for gifting differ from Medicaid”

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