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Revocable Living Trusts

If you are reading this article, someone has likely told you that you need or should have a “Revocable Trust” or a “Living Trust.” In fact, someone might have told you a horror story about what will happen if you do not have a Living Trust. You also might have attended a seminar. Most of these seminars claim Living Trusts are a cure-all, and, for a certain dollar amount, they will draft a Revocable Living Trust. And, you will get the trust in a handsome, faux leather binder.

If only I had a nickel for every one of those faux leather binders I have ever seen!

Is a Revocable Living Trust Right for you? These Estate Planning tools are not cookie-cutter documents that are good for everyone. A careful analysis of your goals, assets, and applicable taxes is necessary to determine if the cost of setting up a Revocable Living Trust is worth the benefits.

To help you understand these documents, let me first give you some Quick thoughts. Then let me Debunk Some Revocable Living Trust Myths and Half-Truths. Finally, let’s run through the pros and cons of a Revocable Trust. This way, you can deduce if paying the cost to set up a Revocable Living Trust Makes Sense For You.

Over 20 Years of Experience: Some Thoughts on the Good, the Bad and the Ugly of Revocable Trusts

I have been an estate planning attorney for more than twenty years. In those many years, I have drafted Revocable Living Trusts as a member of five different state bars. I pride myself in saying that of the hundreds of Revocable Living Trusts I drafted all were for clients for whom these trusts were a good fit. I have probably told twice as many people that they do not need Revocable Trusts than need them. For many people, the best idea is avoiding the expense of forming a trust because it was not a good fit for the client’s estate plan. There is no way to know if you are a good fit for a Revocable Living Trust without careful analysis. Like most tools, a Revocable Trust is not a one-size-fits-all tool.

Is the Revocable Living Trust right for you? The short answer is that a Revocable Living Trust can be a useful estate planning tool for many people. But, another unfortunate truth is that there are many people out there using lies and half-truths to sell unneeded Revocable Living Trusts.

If you attended a seminar whose theme was that everyone needs a Revocable Living Trust, then you are lucky to have escaped with your wallet. Were you were told that a Revocable Living Trust would avoid Estate Taxes and creditors? If so, you were lucky your car still was in the lot when you came out.

Debunking Living Trust Myths and Half-Truths

So first, let’s debunk the most prevalent Revocable Living Trust lies and half-truths.

Claim: A Revocable Living Trust will help me avoid inheritance and estate taxes. False.

A Revocable Living Trust does NOT reduce your inheritance or estate taxes. These are the most common myths. These myths are often touted by those who sell canned revocable living trusts (in faux leather binders). These people feel comfortable telling you this lie because the inheritance and estate taxes are due when you are dead. So, you will never know that they lied to you. Remember that the trust is “revocable.” Because you can revoke the trust, you can, at any time, take all the assets back into your name. Therefore, the IRS and department of revenue ignore the trust’s existence. Your assets in a revocable trust are considered yours when calculating not only your estate and inheritance taxes but also your income taxes. If you need more proof, email me, and I will send you links to the IRS website that state this fact.

Claim: A Revocable Trust will shelter my assets from my creditors. False.

Again, the “Revocable” Living Trust can be “revoked,” so if you can get the asset back, your creditors can take it. The trust does not protect from creditors during your lifetime or at your death. Asset protection differs with an Irrevocable Trust, which you cannot revoke, and can be used to remove assets from creditor’s claims.

Claim: A Non-Irrevocable Trust will shelter my assets from my nursing home bills and Medicaid. False.

Because the trust is “revocable,” the assets are considered yours when evaluating Medicaid eligibility. Use of an “Irrevocable Trust” where you have no right to the assets you gave away into the trust could shelter your assets, but never a “Revocable” trust. Again, for further proof, review the Medicaid website.

Claim: Creating a Trust is all you need to do to avoid probate. False.

Forming the Revocable Living Trust is only the first step. To avoid the Probate Process, you have to arrange all your assets to utilize the Revocable Trust. Deeds must be filed, placing your real estate into the trust. Bank accounts must be moved to the trust or must be designed to pour into the trust at your death. You must complete beneficiary designations for other appropriate assets, such as life insurance policies, annuities, and any qualified plans (IRA, 401k, TIAA-CREF, SEP, etc.).

Further, as the years pass, you will likely change your investments. You may buy a new CD, or open a new checking account. Make these changes with the overall Revocable Living Trust plan in mind. Otherwise, you might undermine the goals, which caused you to form the trust in the first place.

Claim: Nothing needs to be filed with the state if I have correctly set up my Revocable Living Trust. Misleading.

The answer depends on the rules of the state in which you are a resident at your death. If you die a Floridian, Florida law requires that your successor trustee file a notice with the court in the county where you died a resident. Other states are beginning to require similar filings. Furthermore, if your successor trustee wishes to start specific statutes of limitation for creditors, he or she will likely file some paperwork with the states.

Claim: My estate won’t need a lawyer if I have a Revocable Living Trust. Misleading.

The need for a lawyer to help with your estate has nothing to do with a Revocable Living Trust. If your executor could handle your estate alone, then there is no need for a lawyer even if you had no Revocable Living Trust. Similarly, if your executor may need help with some steps that exist with or without a Revocable trust. For example, with filing inheritance and estate tax returns or obtaining beneficiary releases. Further, selling real estate, a business, or settling lawsuits. All are examples where your trustee will still need a lawyer’s assistance, even if you have a Revocable Living Trust.

Is a Revocable Living Trust Right for Me?

A thorough analysis of if a Revocable Living Trust is right for you begins with some necessary information. This article is meant to give you the truth about Revocable Living Trusts. It is not a complete analysis of your particular situation, which can only come with an interview with a competent Estate Planning Lawyer. An experienced Estate Planning Attorney will obtain a clear understanding of your assets, family standing, and your testamentary goals. Our Estate Planning Lawyers do this analysis every day in free consultations.

Until We Have Our Consultation, Here Are Some Facts 

A revocable living trust is a legal entity that your signature brings into existence. Once signed, it will exist, but it will state that all the terms are “Revocable.” The trust may own things, such as your real estate, but at any time, you can “Revoke” the trust and take the assets back. Further, most Revocable Living Trusts state that during your lifetime, the trustee must use all assets for your care. In most cases, you, as the Grantor, serve as the sole trustee.

In contrast, an “Irrevocable Trust” is a trust you sign and bring into existence that you cannot revoke. If you transferred your house into an Irrevocable Trust, the trust owns the home like the Revocable Trust. But, you will likely not be able to ever get the house back into your name.

A Revocable Living Trust is designed to hold title to your various assets (bank accounts, real estate, personal property) during your lifetime for your benefit, and then manage and dispose of your assets after your death. If structured correctly, a Revocable Living Trust may completely replace your Will. If you properly arrange all your assets leaving nothing in your name at your death, there is no need to file your Will with the state. Probate is avoided.

Does a Revocable Trust still sound like a good fit for you? Then the next question you should ask is the cost. Then analyze the charge against Probate’s expense. Is it cheaper to use the Probate Process, or is it more economical to pay for the Revocable Living Trust avoiding the Probate Process?

Costs of creating the Revocable Living Trust include the actual drafting of the trust by an Estate Planning Attorney. Also, there is the cost of transferring any real property deeds into the trust and moving your other assets into the Revocable Trust. The expenses of Probate vary from state to state.

Is your only goal avoiding the cost of probate (see below for other reasons)? If so, in my experience is that it is not cost-efficient to set and funding a Revocable Trust in Pennsylvania or New Jersey. But, setting up a Revocable Trust to avoid probate in New York and Florida is cost-efficient. That is a general observation.

But, There Are Other Reasons for a Revocable Trust, Which Might Have Value for You.

Aiding the Elderly or Those with Alzheimer’s. A Revocable Living Trust can be an excellent tool if you are reaching an age or a medical condition where you need some help with your finances. The trust allows the family to help but allows you to control assets when you do not yet wish to turn overall control. You can name a trusted person co-trustee with the right to act independently but retain the right to act alone. This way, you can work now, but as your abilities diminish, your co-trustee can seamlessly take control.

Reducing the Chance and Cost of a Will Contest. If you believe that the chance of a Will Contest in your estate is high, then a Revocable Living Trust can reduce that risk. You cannot stop someone from filing a Will Challenge, but you can make it much more challenging, expensive, and less likely to succeed.

Convenience. A Revocable Living Trust can be used to avoid probate altogether. So even if its cost does not save your estate much money, it can certainly make it easier for the person who is handling your estate. Making things easier is especially true if that person lives far from your county.

Helping You Manage Your Assets. If properly drafted, a Revocable Living Trust can appoint someone as your co-trustee who can help you manage your assets and bills, but without you giving up control. It is an unfortunate fact that banks will work more willingly with your co-trustee than they will with your Agent under a Power of Attorney.

Real Estate in More Than One State. If you have real estate in several states, then at your death, your estate needs to be opened in each of those states. Ancillary Probate increases the cost of probating your estate. Avoid this added cost by placing each of these properties into a Revocable Living Trust, which would then avoid probate in each state.

Bank Accounts or Investments in Several States. Ancillary Probate may be necessary if you have accounts in banks without branches in your home state. Another example is investments in businesses outside your home state that are not listed publicly. Avoid this added cost by placing each of these investments into a Revocable Living Trust, which would then avoid probate in each state.

Replacing Your Will. If drafted correctly and appropriately funded, a Revocable Living Will can replace your will. But still, allow you to create asset protection trusts and use other techniques to protect your heirs. The terms can mirror terms that would have otherwise been in your will.

If any of these reasons fit your specific needs, then paying the costs of setting up a Revocable Living Trust even in Pennsylvania or New Jersey will make sense.

Here Are Some Typical Revocable Trust Questions

What is the Difference Between Irrevocable and Revocable Trusts?

The most significant difference is that the Grantor can revoke a Revocable Trust and reclaim any assets placed in the trust. While in a typical Irrevocable Trust, the Grantor cannot cancel the trust or recover gifted assets. Because of these revocation powers, courts and creditors treat Revocable Trusts like they do not exist. For example, a Revocable Trust uses the Grantor’s social security number rather than a tax ID number. Creditors have easy access to a revocable trust, and the Grantor’s taxable estate includes its assets. In contrast, an Irrevocable Trust can be designed to avoid creditors and have assets excluded from the Grantor’s estate.

What is the Difference Between a Revocable Trust and a Living Trust?

A Revocable Trust and a Living Trust refer to the same type of trust. “Living” refers to the ease of modifying the trust. “Revocable” applies to you retaining the right to revoke the trust in full.

Will vs. Trust?

This refers to the choice of either using a Will or replacing your Will with a Revocable Living Trust. Read about Is a Revocable Living Trust Right For Me to determine if the cost to create a Revocable Trust is worth the benefits the trust provides.

After setting up a Revocable Living Trust, is there any requirement to report to the IRS or State that you have set up a Trust?

A Revocable Living Trust is a Grantor Trust, so all income is reported under your social security number. There is no need to notify the IRS or the State of the trust’s formation.

Do I Still Own My Real Estate Used For The Creation of the Revocable Trust?

When real estate funds a Revocable Trust, the land’s ownership shifts from your name to that of the trust. The deed will state that the trust owns the property. Even though you don’t own the land, the Revocable Trust is for your benefit. Further, you have the right to remove the property at any time or revoke the trust.

What Happens if the Person I Leave Something To in a Revocable Trust Dies Before Me?

Because the trust is Revocable, you can always modify the trust as your life situation changes. But, like a Will, a well-drafted Revocable Trust clearly states where assets pass should a beneficiary die before the Grantor. A good Estate Planning Lawyer asks you what result you wish, and drafts terms accordingly.

For example, let us say a Montgomery County, Pennsylvania client wants me to set up an Irrevocable Third Person Special Needs Trust for her autistic grandson. This grandson could live in Camden County, New Jersey. I would ask her what should happen to any unused funds at the Grandson’s death. She might say that if her grandson doesn’t survive her, the resources earmarked for the Special Needs Trust instead pass to other living grandchildren. She might also say that if her grandson dies after her, any remaining funds pass to a charity supporting Autism research. Whatever her wish, I will then incorporate those terms into her trust. The trustee must follow the trust’s terms.

How To Create a Revocable Living Trust?

You create a trust by signing the document. Your signature “brings the trust to life.” A Revocable Trust may serve many purposes during your life and after your death. For example, your Revocable Living Trust could have Disclaimer Trust provisions to protect your spouse or Dynasty Trust provisions creating protective trusts sheltering your inheritance from your children’s spouses and creditors. A review of your goals and assets will help determine what provisions best fit your needs. Call for a free consultation!

Who Needs a Revocable Living Trust?

No person is required to have a Revocable Living Trust, but depending on your assets and goals, a Revocable Living Trust can provide savings and privacy. Read more about Is a Revocable Living Trust Right for Me?

Can a Trustee be a Beneficiary?

When using a Revocable Living Trust, a Trustee is often a Beneficiary. When using an Irrevocable Trust, the Trustee can be a Beneficiary, but this comes at a cost. Depending on the type of trust, having the Beneficiary serve as the Trustee could open the trust to attack by creditors.

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Revocable Living Trust might be an excellent estate planning tool for you, but it will take more than a quick seminar to find out. Luckily, it will not cost you anything to get more information. Contact Us to set up a complimentary initial estate planning consultation. You can count on one thing; we won’t sell you a Revocable Living Trust unless it fits your estate plan. Please read more about our Estate Planning Process.

For more than two decades, Klenk Law has focused only on Estate Law. We’ve seen it all, and this experience allows us to explain sophisticated estate planning techniques clearly and concisely. We make it easy for you to understand Revocable Living Trusts so you can make the best decisions for yourself and your family. 

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