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The Heritage Law Center, LLC Blog

Revocable vs Irrevocable Trusts: Important Differences

POSTED ON: June 17, 2016

Revocable trusts and irrevocable trusts are both very valuable tools in estate planning, yet their differences are important to understand to ensure you make the right choice at the right time.

If you have done some research on Estate Planning, you have likely heard the terms “revocable” and “irrevocable.” The term “irrevocable” might be alarming to you – does that mean it can never be undone? Will you not have access to your assets if you need them? Let’s take a closer look at the differences.

Avoiding Probate

Proper estate planning with both revocable and irrevocable trusts will help you keep your assets out of the probate courts. Placing assets in a trust will avoid costly court and attorney’s fees as well as an extended time-period where your assets are tied up in court and inaccessible to those you have left them to through a simple will.

Revocable Trusts

A common and basic type of trust is a revocable trust. Revocable trusts give you control and access to the assets inside the trust as well as the flexibility to change what is inside the trust after it is created. It also allows the opportunity to “revoke it” and end its existence if you choose to. The access to your assets and the control you have over the revocable trust is appealing as you may hardly notice a difference in how you would manage your assets once they are placed in the trust.  For many people this may be the best option.

Why Not a Revocable Trust?

The access and control a revocable trust gives you can also be one of the reasons it may not be the right tool for you. If you are using estate planning to protect your assets from the cost of long-term care, specifically nursing home costs, a revocable trust is not the best option. Since the assets within a revocable trust are accessible to you, if you should need to use Medicaid (also known as MassHealth 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

As the name implies, irrevocable trusts are generally less flexible than revocable trusts. But they can provide greater protections. Assets placed in an irrevocable trust are excluded from your financial ability to pay for nursing home care, as long as they are placed in the trust prior to the five-year-look-back period for MassHealth Eligibility.

An irrevocable trust cannot be altered or dissolved after it is created, however a properly drafted irrevocable trust can still provide 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 perhaps 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.

Don’t Give it all Away

Many clients are concerned about long-term care costs and are sometimes told that they should give everything away to their children or other family members. This is ill-advised as the future is not predictable and we have no way of knowing what situations will arise where those assets will be needed. Trust planning with a qualified Massachusetts estate planning attorney is a much better option and will yield a secure plan you can rely on.

For more information on estate planning with trusts, please contact Matthew Karr at mkarr@maheritagelawcenter.com or 617.299.6976.