Passing on Wealth: Understanding the Differences Between Irrevocable and Revocable Trusts

One might see references to a trust in publications or on television. This begs the question “What is a trust?” Merriam-Webster defines a trust as “property interest held by one person for the benefit of another.”^[1] That definition just scratches the surface. A trust will have three parties to it:

1. The grantor or settlor who creates the trust.
2. The beneficiary of the trust. The person or organization who benefits from the trust.
3. The trustee. The trustee is the person or organization that manages the assets of the trust.^[2]

Trusts can be revocable or irrevocable. A revocable trust lets the living settlor (or creator) of the trust change their mind and withdraw assets, modify the trust, or cancel the trust while an irrevocable trust cannot be modified.^[3] Below is a comparison of revocable trusts versus irrevocable trusts on a few key points.

Control: One key difference between the two types of trusts comes down to who controls the property or assets held by the trust. In the case of a revocable trust, since the settlor can terminate the trust, it is the settlor that controls the assets.^[4] In the case of an irrevocable trust, the trust itself controls the assets via the trustee (see below).^[5]

Protections: Another key difference between the two rests with the protection from creditors each affords. In the case of a revocable trust, since the settlor can revoke the trust there is no asset protection. However, assets held in a revocable trust can avoid the probate process for the beneficiaries of the trust. Probate is a formal legal process for the recognition of a deceased will and the appointment of executors.^[6] Probate can be expensive depending on the circumstances. This avoidance of probate is true for the beneficiaries of an irrevocable trust as well.

With an irrevocable trust, since the settlor no longer has control, the assets may be protected from the creditors of the settlor as long as the creditor claim did not exist prior to the transfer to the trust. In addition, the assets of the trust are protected from the creditors of the beneficiary of the trust.

Beneficiaries: With a revocable trust it is typical that the beneficiary is the settlor of the trust during their lifetime. The revocable trust would have terms that explain what happens to the assets held in the trust after the settlor passes away. In this way, it can complement settlors’ or beneficiaries’ wills since, as explained above, assets held in a revocable trust would escape probate.

In the context of an irrevocable trust, the beneficiary is typically not the settlor but other individuals (often family members) or charities whom the settlor wishes to benefit.

Trustee: In the context of revocable trusts, the settlor of the trust is often also the trustee. Since the revocable trust is controlled by the settlor it is common that the trustee and the settlor are the same.

Implications for Estate/Gift Tax: The implications of revocable and irrevocable trusts for estate tax purposes are very different. Since the control of the assets rests with the settlor in a revocable trust the assets of the revocable are includable in the taxable estate of the settlor.

In the context of irrevocable trusts, although the creation and funding of the irrevocable trust have estate and gift tax implications since the ownership and control of the assets are held by the trust itself, the assets typically flow to the beneficiaries outside of the settlor’s federally taxable estate. The growth of the assets from the date of funding escape taxation for Federal Estate Tax purposes.

Trusts can play a critical role in one’s overall financial plan. It is important to find a financial advisor to provide sound financial advice tailored to your specific situation that supports your family’s needs.