Living trusts tend to come in two basic flavors: revocable and irrevocable. Most clients will instinctively favor the revocable version. After all, why should they want to put their money into something they can never change, when they could put it into something they retain control over — and can even cancel altogether — instead?
What Is an Irrevocable Trust?
First of all, it’s exactly what it says: it’s a trust that can’t be modified, amended or terminated without the beneficiary’s permission. After transferring assets into the trust, the grantor can not change the written terms after it’s been executed, thus removing all of his rights of ownership to those listed assets.
(Related: 10 Facts to Know About Irrevocable Trusts)
Why Choose an Irrevocable Trust?
Obviously, there must be good reasons to opt for the irrevocable variety. Not being able to revoke the trust is part of a trade-off that comes with several other benefits. The simplest difference between the two is that assets remain in the grantor’s estate in a revocable trust but move out of the estate in an irrevocable trust. The primary reasoning behind the irrevocable trust is that there are many good reasons for clients to want to move assets out of their estate.
Here are some simple ways to explain to your clients what they’re gaining by going with the irrevocable trust:
In a revocable trust, the grantor maintains ownership of the assets, so there’s always the potential to lose them to creditors or lawsuits. An irrevocable trust moves those assets out of the trustmaker’s hands, and the grantor is no longer considered to own them. An independent trustee makes all the decisions regarding investments on behalf of all the trustees, which may or may not include the grantor.
Avoiding Capital Gains Taxes
There are ways to move assets into the irrevocable trust in such a way that they won’t incur capital gains taxes. That’s not possible with a revocable trust. Keep in mind, though, that transferring assets through an irrevocable trust may result in gift taxes being owed.
Avoiding Estate Taxes
The assets in a revocable trust remain in the grantor’s estate, so if they’re close to qualifying for the federal estate tax, those assets could easily push them over the limit. With an irrevocable trust, those assets are no longer part of the grantor’s estate.
If assets are put into an irrevocable charitable trust while the grantor is still alive, the trustmaker can take a charitable income tax deduction for those assets. If the initial transfer of assets into such a trust doesn’t take place until after the trustmaker’s death, the estate will receive a charitable estate tax deduction.