Revocable vs. Irrevocable Trust – What’s the Difference?

Sometimes you need to look past the trust's name to see if it is truly revocable or irrevocable.
Sometimes you need to look past a trust’s name to see if it is truly revocable or irrevocable.

At first, the difference between a revocable trust and an irrevocable trust may appear very simple. One would think that, as the names imply, a revocable trust is one that can be terminated or amended, while an irrevocable trust is one that cannot be changed.  However, as often happens with the law, things aren’t always what they seem as reported in the article “What’s the difference between a revocable and irrevocable trust” from Market Watch. 

Sometimes you have to look beyond the name of the trust to determine if it is truly revocable or irrevocable.

A revocable trust, often referred to as a revocable living trust, is one that can be changed or terminated by the person who created the trust, whom we shall refer to as a trust maker. A revocable living trust is often used as a substitute for a Will because, like a Will, it can be amended by the trust maker depending on the circumstances, and it can help avoid probate if the trust maker’s property is titled in the name of the trust (or the trust is named as a beneficiary on the trust maker’s accounts and other assets).

But, a revocable trust becomes an irrevocable trust on the trust maker’s death. Also, the trust maker’s incapacity during life may result in a revocable trust becoming irrevocable. This can be confusing because the trust may keep the same name (for example, the John Doe Revocable Living Trust), but, if John Doe is deceased, the revocable living trust is really an irrevocable trust.

A revocable trust is considered almost an alter ego of the trust maker. As a result, a revocable trust does not provide creditor protection. From a tax standpoint, a revocable trust belongs to the trust maker and is included in the trust maker’s estate when calculating the estate tax.

As for an irrevocable trust, one would generally think that it is a trust that cannot be changed. But this impression, too, may be deceptive. A trust maker, beneficiary, or an independent person may be given powers to make certain changes to an irrevocable trust. Those changes may include the removal and replacement of a trustee and the ability to change or add beneficiaries.

An irrevocable trust is considered to be totally separate from the trust maker. It is usually constructed to avoid having the assets of the trust included the trust maker’s estate for estate tax purposes. An irrevocable trust can offer the beneficiary creditor and divorce protection, as well as prudent management of trust assets if the beneficiary is not good with financial matters. That’s why many parents create irrevocable trusts for their children when making gifts instead of making gifts to their children directly.

In addition to the trust maker giving the power in limited circumstances to change certain provisions of an irrevocable trust, an irrevocable trust may be “reformed” by a court, if it can be shown that the trust’s purposes can no longer be carried out.

And many states have passed laws allowing an irrevocable trust to be “decanted” – meaning that the assets of the original trust may be poured like wine into a new trust that includes provisions that are better suited to the current situation. These laws for the most part include safeguards to make sure that this is not a unilateral decision on the part of the trustee or the trust maker and the decanting is permitted only if it is in the best interests of the beneficiaries.

Of course, a trust maker may always prohibit reformation or decanting when creating an irrevocable trust, but, if the trust is to last for generations, it may make sense to allow limited ways for the irrevocable trust to adapt to changing circumstances.

So the next time you come across a reference to a revocable or irrevocable trust, look beyond the name to determine whether the trust is really revocable or irrevocable.

Reference: Market Watch (Oct. 8, 2021) “What’s the difference between a revocable and irrevocable trust”

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Make Tax-Free Gifts to Your Children

There are several ways to make tax-free gifts to your loved ones.
There are several ways to make tax-free gifts to your children and other family members.

Do not let constant political and financial speculation prevent you from making tax-free gifts to your children or other family members. These can take the form of  what’s called “annual exclusion” gifts, or the payment of a child’s or grandchild’s medical expenses, or paying for their education.

Making Tax-Free Annual Exclusion Gifts

Annual exclusion gifts are transfers of money or property in an amount or value that does not exceed the annual gift tax exclusion. In 2021, the annual gift tax exclusion is $15,000 per recipient. Therefore, this year you can give up to $15,000 per person to as many individuals as you choose without having to report the gifts to the IRS. In other words, the IRS does not consider gifts that are equal to or less than the annual exclusion amount to be taxable gifts at all. You may need to file a gift tax return if your gifts either exceed or do not qualify for the annual exclusion amount. Your estate planning attorney or accountant can guide you.

Married couples can take double advantage of the annual exclusion and make tax-free gifts of $30,000 in 2021.

Making Tax-Free Gifts That Qualify for the Medical Exclusion

 A payment that qualifies for the medical exclusion is another type of tax-free gift you can make. Payments qualify for this exclusion if they are made on behalf of an individual to a person or an institution that provided medical care or medical insurance to the individual. In general, medical expenses that qualify for this exclusion are the same ones that are deductible for federal income tax purposes. Therefore, in 2021, you can pay the cost of your grandchild’s emergency appendectomy and, in the same year, give your grandchild an additional $15,000 without having to file any gift tax returns.

To qualify for the medical exclusion, a payment must meet two critical requirements.

  • You must make payment directly to the person or institution that provided the medical care or medical insurance. If you give the money to the individual who received the medical care or insurance benefit, even with explicit instructions that it be used to pay for the medical care, your payment will be considered a gift to the individual and not payment of a qualified medical expense.
  • The amount paid must not have been reimbursed by the individual’s insurance company. Any reimbursed amount is not eligible for the unlimited medical exclusion from the gift tax, and that amount will be treated as having been made on the date the individual received the reimbursement.

Making Tax-Free Gifts That Qualify for the Educational Exclusion

A payment that qualifies for the educational exclusion is another type of tax-free gift. For example, in 2021, in addition to paying for your grandchild’s emergency appendectomy and giving them $15,000 (see above), you can pay their college tuition costs without having to file any gift tax returns or pay any gift tax.

To qualify for the educational exclusion, a payment must meet two critical requirements.

  • You must make payment directly to the institution providing the education rather than to the individual receiving the education.
  • Your payment must be for tuition only, not for books, supplies, room and board, or other types of education-related expenses.

If your payment fails to meet either of these requirements, it will be considered a gift to the individual.

Giving gifts can be an effective way to provide financial assistance to your family members. An estate planning attorney can help with any questions you may have on how to make tax-free gifts of money or property to your family.

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Is it Better to Give or let Kids Inherit?

Should an inheritance remain an inheritance, given to children only after their parents die, or should parents use some of the money to help their kids out while they are still living? That’s a question that many families grapple with, reports a recent article “When to Give Inheritance Money to Your Kids,” from The Wall Street Journal.

Not every family can afford to give their children an advance on their inheritance, but for those who can, there are some things to consider:

Some financial advisors believe that “gifting with warm hands” is a better way to go. Parents can enjoy seeing their children and grandchildren benefit from having the help, based on when it is needed. Decoupling an inheritance from parental death is a happier scenario than the alternative.

Others believe that current financial needs, taxes and the tax situations of the parents and children ought to be the deciding factor. First, is there enough money for the parents to live comfortably in retirement? That includes being prepared for the cost of an unexpected health crisis that might lead them to need short- and long-term care. Follow that by understanding the tax situation of both parents and heirs. Once those answers are fully formed, then a discussion about gifting can move forward.

Another school of thought is to stop saving every penny and enjoy life to its fullest right here, right now. Some people are more concerned with maxing out their 401(k) plans than enjoying their lives. A healthy balance between protecting assets for later years, creating wealth for the next generation and having some fun too is the goal for many families.

Regardless of how you see your situation, one thing is sure: if you have any concerns about how your children will handle an inheritance, make a gift while you are living. You’ll get to see how they handle it, responsibility or recklessly. This may inform your planning for the future, including the use of spendthrift trusts.

The pandemic has forced many people to confront their own mortality and consider how they really want to spend the rest of their lives, as well as their assets. Many parents are preparing to make changes in their estate and gifting plans to accommodate needs that have arisen as a result of COVID’s economic impact.

Talk with your children about finances—yours and theirs. Discuss their needs, especially if they have been unemployed for an extended period of time. If they need money for something critical, like paying for health insurance or catching up on student loans, the gift should be made with a clear understanding of its intended purpose.

Your estate planning attorney can help create a plan that works while you are living and after you have passed. You can also see my thoughts on how to leave to your kids in a way that protects them here.  https://www.galliganmanning.com/protecting-money-from-a-childs-divorce/

Reference: The Wall Street Journal (April 30, 2021) “When to Give Inheritance Money to Your Kids”

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