When creating a trust, you should decide if the trust is going to be revocable or irrevocable. Each type of trust has their own advantages and disadvantages. If a trust doesn’t specify if it is revocable or not, state law presumes that the trust is either revocable or irrevocable. Recently, states have changed their laws to assume that a trust is revocable unless otherwise noted. If you want to make an irrevocable trust, make it clear!
Why create an irrevocable trust? Irrevocable trusts have special advantages and disadvantages that make it right for some people. Here are some of the benefits:
1 – Minimizing Taxes
When someone dies, the government levies a tax on their estate. This is known as the estate tax or the death tax. Currently, the government taxes a portion of any estate that is worth 12 million or more. Everything after twelve million dollars is taxed – often at a 40% rate! Unfortunately, this exemption will drop to around 6 million dollars in 2026. The good news is that assets placed in irrevocable trusts do not count towards estate taxes – making estate taxes a lucrative choice to legally avoid taxes. However, keep in mind that income made through irrevocable trusts is often taxed at a higher rate than regular income taxes.
2 – Qualifying for Government Benefits
Disabled people who receive Medicaid and SSI have extremely strict income and asset limitations. Persons who own or receive too much money can lose their benefits. Irrevocable trusts can shelter income and assets, so these limits are not exceeded. However, keep in mind that the creator of a “Medicaid Trust” cannot serve as trustee. Just like estate tax savings trusts, the beneficiary has been divested of substantial control over the trust, so the government benefits continue to be provided, because the trust funds are not included as the beneficiary’s own assets and income.
3 – Protection Against Creditors & Lawsuits
Protecting your assets from your creditors usually requires a trust to be irrevocable, and the trustee and beneficiary must be unrelated parties (or, at most, the same party with limited power over trust funds). These are aptly referred to as “asset protection trusts”, and are mainly created in certain states with favorable laws. For people who frequently face lawsuits (such as surgeons, architects and real estate developers) these protections may be especially advantageous.
Note: Irrevocable Trusts also have unique restrictions and disadvantages. You should consult with an attorney before creating an irrevocable trust.