Understanding the Difference Between Revocable and Irrevocable Trusts

Elder Law | Jul 19, 2023 | Rachel H. Snead

Trusts are valuable estate planning tools that allow individuals to manage their assets and ensure their desired distribution upon death or incapacitation. When establishing a trust, one important decision to make is whether it should be revocable or irrevocable. The following exploration aims to highlight the key differences between revocable and irrevocable trusts to help you understand their distinct features and advantages.

Revocable Trusts
A revocable trust, also known as a living trust or a revocable living trust, offers flexibility and control during your lifetime. As the grantor, you retain the ability to modify, amend, or even revoke the trust entirely. Here are four key characteristics of revocable trusts:

1.] Flexibility
A revocable trust allows you to make changes to its terms, beneficiaries, or assets held within the trust whenever you desire. This flexibility is particularly useful if you anticipate changes in your personal circumstances or estate planning goals.
2.] Probate Avoidance
3.] Incapacity Planning
Revocable trusts enable you to plan for incapacity or disability. If you become mentally or physically incapable of managing your affairs, your chosen successor trustee can step in and manage the trust’s assets on your behalf, ensuring your wishes are carried out.
4.] Tax Considerations
Revocable trusts do not provide any significant tax benefits, as the assets held within the trust are still considered part of your estate for tax purposes. However, they offer flexibility for implementing strategies that can help minimize estate taxes.

Irrevocable Trusts
An irrevocable trust, as the name suggests, is a trust that cannot be altered or revoked once it is established, except in rare cases under specific circumstances. This type of trust provides different benefits and considerations:

1.] Asset Protection
Irrevocable trusts are commonly used for asset protection. Once assets are transferred into trust, they are no longer considered part of your estate if certain requirements are met. This separation can shield those assets from creditors, lawsuits, and potential claims, providing a level of protection in certain cases.
2.] Medicaid Planning
Irrevocable trusts can also be used as part of long-term care and Medicaid planning strategies. Transferring assets into an irrevocable trust can help protect them from being considered countable assets for Medicaid eligibility purposes once the five-year look-back period has been surpassed.

3.] Estate Tax Planning
Irrevocable trusts can be utilized as effective tools for estate tax planning for very wealthy individuals. By removing assets from your estate, you can reduce the overall value subject to estate taxes, potentially preserving more wealth for the intended beneficiaries.
4.] Loss of Control
One significant characteristic of irrevocable trusts is the loss of control over the assets placed within the trust. Once the assets are transferred, you generally cannot retrieve them or change the trust’s terms without the consent of the beneficiaries or the court.

Deciding between a revocable and an irrevocable trust depends on your specific estate planning goals and circumstances. There are many factors to consider when choosing between the two. Therefore, it is crucial to consult with an experienced estate planning attorney to determine the best trust structure that aligns with your objectives and provides the desired level of control and protection.

Rachel H. Snead

757-399-7506 | 252-722-2890
[email protected]

Rachel Snead is an associate attorney with Hook Law practicing primarily in the areas of estate planning, estate and trust administration, guardianship and conservatorships, dispute resolution, and fiduciary litigation. To date, she has litigated and settled over 50 matters. She enjoys the diversity of work that elder law provides, and the challenges presented by litigation just as much as she enjoys helping people with creating their unique estate plan and navigating the complex administration of estates and trusts.

 A graduate of the University of Richmond School of Law and Virginia Commonwealth University, Rachel is admitted to the Virginia State Bar. She is also a member of the Virginia Bar Association (VBA), the Hampton Roads Estate Planning Council, the Virginia Academy of Elder Law Attorneys (VAELA), and the Virginia Trial Lawyers Association (VTLA).

In 2022 she became a licensed health and life insurance agent and attended the prestigious National Trial Advocacy College at the University of Virginia School of Law where she received intensive hands-on advocacy training.

 She has taught multiple continuing legal education courses including, “Getting Started in Elder Law,” “Virginia Probate from Start to Finish,” and “Guardianships and Assisted Decision-Making in Virginia,” and has facilitated sessions for VAELA including “Medicaid & SSI When a Client Owns a Business.” She has also been published on various platforms including T & E Magazine, WealthManagement.com and Age in Action, a quarterly newsletter published by the Virginia Center on Aging and Virginia Department for Aging and Rehabilitative Services.

Practice Areas

  • Estate Planning
  • Estate & Trust Administration
  • Guardianships & Conservatorships
  • Litigation & Dispute Resolution
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