Both revocable and irrevocable trusts protect the assets that you’ve placed in the trust from going through probate. So, both types of trusts will avoid costly court and attorney’s fees, plus the long period of time that assets are tied up in court and inaccessible to those you’ve left them to. However, it’s important to understand the differences between the two types of trusts and their respective benefits.
Revocable Trusts
When you put your assets in a revocable trust, you maintain access to the assets and have the flexibility to change what’s inside the trust after it’s created. You can also choose to end its existence. You completely maintain control over your revocable trust.
What are reasons not to use a revocable trust? If you’re using estate planning to protect your assets from the cost of long-term care, specifically nursing home costs, then a revocable trust won’t work for you. Since the assets in the trust are accessible to you, if you need to use MassHealth (Medicaid in Massachusetts), the government will force you to access those assets to pay for your care. Only when those assets are spent down will you qualify for MassHealth benefits.
Irrevocable Trusts
Irrevocable trusts are less flexible than revocable trusts, but they provide greater protection for the assets in them. Assets in the irrevocable trust may be excluded from your financial ability to pay for nursing home care, as long as they’re placed in the trust prior to the five-year look-back period for MassHealth eligibility.
An irrevocable trust can’t be changed or dissolved after it’s created, however a properly drafted irrevocable trust can still provide you (the person creating it) some control and flexibility. For example, assets that are placed in an irrevocable trust can be accessed by the trustee who would be a person of your choosing whom you trust with your financial decisions—perhaps a family member or a trusted attorney or advisor. If you were to need access to cash or other assets within the trust, you could communicate with that trustee who could distribute the funds to a third party (your beneficiary) to use for your benefit.
How We Can Help You
Many of our clients are concerned about long-term care costs and are sometimes told by others that they should give everything away to their children or other family members. After talking to us, they realize that isn’t the best idea since the future isn’t predictable and we have no way of knowing what situations will arise where those assets will be needed. There can also be huge tax implications to making substantial lifetime gifts. Trust planning is a much better option and will yield a secure plan you can rely on.
Contact us today at mkarr@maheritagelawcenter.com or 617.299.6976 to set up a free, confidential consultation. We’ll listen to your concerns and help you determine the best option for you.
