Why an Irrevocable Trust May Be Superior to Gifting

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Parents and other family members who want to pass on assets during their lifetimes may be tempted to gift the assets. Although setting up an irrevocable trust lacks the simplicity of giving a gift, it may be a better way to preserve assets for the future.

A trust is a legal entity under which one person — the “trustee” — holds legal title to property for the benefit of others — the “beneficiaries.” The trustee must follow the rules provided in the trust instrument. An “irrevocable” trust cannot be changed after it has been created. In most cases, this type of trust is drafted so that the income is payable to you (the person establishing the trust, called the “grantor”) for life, and the principal cannot be applied to benefit you or your spouse. At your death the principal is paid to your heirs. This way, the funds in the trust are protected and you can use the income for your living expenses.

To learn more about using a living trust in your estate plan, join us for a free education webinar “5 Things You Need to Know About Estate Planning Once You Turn Sixty-Five” presented by Andrey Milvidskiy, Esq., an elder law and estate planning attorney and the author of the book The Law of Aging: Estate Planning and Beyond. Click here to register for the upcoming webinar.

The terms of the trust may be structured in a way that protects your assets not only during your life, but also for the lives of your beneficiaries. A creditor’s rights to a beneficiary’s interest in trust assets is typically limited by the terms of the trust. For example, a grantor could place the long-time family home in a trust and direct the trustee to allow his adult son to live in the house for life, and to use trust assets to maintain the property and pay property taxes. Because the grantor’s son would not own the property and would not have the right to transfer it, the asset would be shielded from his creditors. Asset protection for beneficiaries can play a significant role in estate planning—especially when there are concerns about one or more heirs or beneficiaries based on issues such as drug or alcohol problems, large debts or unpaid judgments, irresponsible or risky lifestyles, unstable marriages, to name a few.

While gifting assets outright is much simpler process than setting up a trust, the following are some of the advantages of setting up a trust instead:

• Income. Putting assets in a trust means you can receive income from the assets to continue to pay for living expenses. Depending on how the trust is set up, you can receive regular income payments or the trustee could have discretion to make payments.
• Control. With an irrevocable trust, you as the grantor can maintain some control over the assets. You get to choose the trustees and establish the rules of the trust. You can also retain the right to change beneficiaries with a power of appointment in your will.
• Asset protection from creditors. If you give money to a family member directly, that money could be lost to the recipient’s carelessness, creditors, or divorce. Keeping the funds in a trust protects the assets for the future.
• Taxes. If the trust is structured properly, it can have a tax advantage for your beneficiaries. Assets that have gone up in value will receive a “step-up” in basis on your death, which means your beneficiaries will pay less in capital gains taxes. Assets that are gifted do not receive a “step-up.”
• Medicaid. If you anticipate needing long-term care benefits in the future, then it is important to plan ahead. If you give away money or fund an irrevocable trust within the five years (the “look-back period”) before applying for Medicaid, you may face a period of ineligibility for Medicaid benefits. The actual period of ineligibility will depend on the amount gifted or transferred to the trust. Putting assets in a trust allows you to plan ahead while retaining some income and control over the assets.

To set up an irrevocable trust and to learn more about estate planning, contact our attorneys at the Milvidskiy Law Group P.C.

Milvidskiy Law Group P.C. is an elder law and estate planning firm with offices in Paramus, Morristown, Jersey City and Red Bank. Our practice is focused on elder law, wills, trusts and estates, including estate planning and administration, asset protection, special needs planning, Medicaid and Veterans’ benefits, as well as business succession planning.

To learn more about our firm and its services, visit our website www.milvidlaw.com. You can contact our offices by phone at (877) 310-3939 or via email at [email protected].

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