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Estate Planning: Irrevocable Trust vs. Wills

There is no one-size-fits-all approach to estate planning. What works well for one person or family might be different for someone else, depending on factors such as the size of their estate, whether they have young children, etc. When deciding on an appropriate estate plan, one of the more common questions people have is about the difference between a will and an irrevocable trust.

Most people already know what a will is—i.e., a written document detailing how a person wants their assets distributed after they die—but they may not be as clear on how a trust works and even less clear about irrevocable trusts. Here is some brief information on what an irrevocable trust is and some of the main benefits and drawbacks of including one as part of your estate plan.

What Is an Irrevocable Trust?

A trust is an agreement to hold and administer property for the benefit of someone else. There are generally three parties involved: a grantor, the person who creates and funds the trust; the trustee, who is legally responsible for managing the trust and its assets; and the beneficiary, the person who receives the benefits of the trust. For example, if a grantor created a trust with an apartment building as its sole asset, a trustee would manage the building and send payments from the rental income (or whatever the terms of the trust dictate) to the beneficiary. A trust can be created by a will when the grantor passes away (known as a testamentary trust) or created while the grantor is still alive (a living trust).

When people talk about irrevocable trusts, they are referring to a type of living trust. It is irrevocable because once created, they take on a life of their own and cannot be changed or revoked without the consent of all the named beneficiaries. In addition, the grantor cannot take assets back from the trust. This is in contrast to a revocable trust, where the grantor retains some control. But it is the inflexibility of the irrevocable trust that gives it some advantages.

The Advantages of an Irrevocable Trust

Living trusts, in general, provide some great benefits for estate planning. Namely, the assets in a living trust avoid the probate process altogether after the grantor dies, and they are not subject to an estate tax. In addition, irrevocable trusts have a few additional benefits precisely because the grantor no longer has any control over the trust property.

First, the income from property in an irrevocable trust is no longer taxable income for the grantor. The grantor of a revocable trust, on the other hand, may be taxed on this income (though they are not taxed from income that goes to a beneficiary). Second, the assets of an irrevocable trust are safe from creditors. If the grantor declares bankruptcy or is required to pay damages from a lawsuit, the trust assets can’t be touched because the grantor no longer owns them.

What is the main disadvantage of an irrevocable trust? There is a clear tradeoff: control vs. the security of the assets. Once created, the grantor cannot change their mind. Anyone considering an irrevocable trust should carefully consider every consequence and obtain legal advice from an attorney.

Evaluate Your Estate-Planning Options

An irrevocable trust is a powerful tool to protect your assets and to provide for those you care about, but they require great care in their implementation. Legal advice from an experienced estate attorney is indispensable when creating the right plan for your specific needs. Contact us today to schedule an appointment.

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