Understanding Revocable Trusts
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Estate planning can feel overwhelming. While many people expect the Last Will and Testament to be the main document in their estate plan, that is just one tool in a much larger toolbox. Another estate planning tool is the “Revocable Trust”, also known as the “Living Trust”, which is becoming more frequently mentioned, but still commonly misunderstood. Here is a Q&A that provides an explanation of Revocable Trusts.
What is a Revocable Trust?
A Revocable Trust is a legal document where you transfer ownership of your assets during your lifetime while retaining the ability to modify, amend, or fully revoke the Trust. A Revocable Trust sets forth the terms under which the assets are owned and managed while you’re alive and their disposition in the event of your incapacity or death.
Who are the parties to a Revocable Trust?
You, as the “Grantor” create the Revocable Trust. As the Grantor, you appoint a “Trustee” to manage the assets owned by the Trust. You can serve as the Trustee during your lifetime. You appoint “Successor Trustees” to manage the Trust in the event of your incapacity or death. The “Beneficiaries” are the individuals or entities that will receive the benefit of the assets owned by the Trust. You may be the sole beneficiary of your Revocable Trust during your lifetime, and you can set forth the terms of the distribution of the assets after your death – just as you would in a Last Will and Testament.
How does a Revocable Trust operate?
During your lifetime, a Revocable Trust allows you to maintain complete control over the assets owned by the Trust. This includes transferring assets in and out of the Trust and also buying or selling certain assets or property through the Trust. You can also retain the ability to amend the terms of the Revocable Trust, including changing the distribution of assets upon your death and who serves as Successor Trustee. At your death, your Revocable Trust becomes irrevocable, and your Successor Trustee administers the Trust and distributes the assets according to its provisions.
How do you fund a Revocable Trust?
To take full advantage of a Revocable Trust you must transfer ownership of all your assets to the Revocable Trust. This can include bank accounts, investment accounts, closely held business interests, real estate and tangible personal property. These transfers are accomplished by retitling the assets into the name of your Revocable Trust. Bank accounts, investment accounts, mutual funds and individuals bonds and securities can be transferred to a new account in the name of your Revocable Trust. Real estate can be transferred to the Trust by a deed, and business interests can be transferred to the Trust by an assignment. To ensure the transfers are done correctly, the assistance of an experienced attorney would be helpful.
Does a Revocable Trust avoid probate?
Yes, as soon as all of your assets are either titled in the name of the Revocable Trust or otherwise owned as non-probate assets. Examples of non-probate assets outside of your Trust would include jointly held assets, like a jointly held residence, or assets payable to an individual, like an insurance policy. If all your assets are in your Revocable Trust, jointly held, or payable to a named beneficiary, then the probate of Last Will and Testament will not be necessary. After you pass away, the Trustee of your Revocable Trust has the immediate authority to distribute assets pursuant to the terms of the Revocable Trust without going through the probate process.
When might you consider a Revocable Trust?
While anyone has the ability to create a Revocable Trust, it may not be appropriate for everyone. Individuals with limited assets might find other estate planning tools more suitable and affordable.
A Revocable Trust plan is particularly beneficial for individuals who own real estate in multiple states, have complex asset structures, want to provide for seamless management during incapacity or who want to avoid the probate process.
What are the Common Misconceptions?
There are several misconceptions about Revocable Trusts.
First, simply creating the Revocable Trust is all you need to do. This is incorrect. To receive the full benefits of the Revocable Trust, you must properly transfer your assets to the Revocable Trust.
Second, a Revocable Trust offers tax benefits. This is incorrect. A Revocable Trust does not have any income tax benefit during your lifetime and does not provide an estate tax benefit at your death.
Third, a Revocable Trust is a trust that provides asset protection and can be used for long-term care planning purposes. This is incorrect. Generally, a Revocable Trust will not protect your assets from your creditors. It will also not protect your assets for long term care purposes. If you want to engage in Medicaid Planning to address potential nursing home costs, you will need to consider other planning tools including Irrevocable Trusts.
Fourth, if you create a Revocable Trust then you do not need a Last Will and Testament. This is incorrect. At the time you create the Revocable Trust, you should also create a “Pour-Over Last Will and Testament”. In the event you do not transfer all of your assets to your Revocable Trust prior to your death, your “Pour-Over Last Will and Testament” will direct that those assets be distributed pursuant to your Revocable Trust.
Trying to decide whether a Revocable Trust or a Last Will and Testament is appropriate for your estate planning can be challenging. It is advisable to seek the guidance of an experienced estate planning professional to ensure you have the plan that is best for you.
James D. Wighaus is an Associate Attorney with O’Connell and Aronowitz, 6 Airport Park Boulevard, Latham, New York. James’ practice is focused in the areas of corporate law, and trusts and estates law, including estate planning, long-term care planning, estate tax planning and estate administration. James can be reached at (518) 694-5698, jwighaus@oalaw.com and www.oalaw.com.



