Revocable versus Irrevocable Trusts in Florida

The concept of utilizing a trust as an estate planning tool can be confusing to many. Trusts range from relatively simple to more complicated in nature. This level of complexity is typically determined by the individual’s assets, desired distribution scheme and their beneficiary structure. The settlor’s ultimate intentions regarding protection from creditors, tax savings, etc. will indicate whether such trust is best as being revocable or irrevocable.

An image of a modern Florida House representing the Homestead Laws in Florida.

An introduction to Trusts in the State of Florida

In Florida, a trust is defined as an instrument created by an individual, known as a settlor, that contains that settlor’s intent regarding certain provisions contained in such document. See Fla. Stat. 736.0103.

A valid trust is created when a settlor has the capacity and intent to create the trust, specific duties are assigned to the trustee and a beneficiary is identified.

It is important to note that the same person cannot be the trustee and sole beneficiary.

Trusts are created for a variety of reasons and may be testamentary (a trust created upon the death of the settlor) or inter vivos (also known as “living trusts”) which are effective during the lifetime of the settlor.

While all testamentary trusts are irrevocable by definition, living trusts may be revocable or irrevocable.

There are benefits and drawbacks to each type of living trust and the choice of which one to create depends largely on the estate planning and/or asset protection objectives of the settlor.

Revocable Living Trusts

According to Fla. Stat. 736.0103(17), a revocable living trust is one that can be changed at any time by the settlor without the permission of the trustee or any other person holding an adverse interest. It may be amended, added to or revoked and canceled entirely.

One of the largest draws towards creating a revocable trust is its use as an amendable estate planning tool that allows for the benefit of avoiding the probate process. This also protects the privacy of property and beneficiaries as information contained in the revocable trust does not become public record. Essentially, it provides the basic protection to the settlor while continuing to be amendable and/or revocable if deemed appropriate by the settlor in the future.

However, a significant downside is that assets transferred to a revocable trust remains personal property of the settlor since that individual maintains absolute control over the trust assets. This means that personal creditors can still attach to the assets.

Basically, a revocable trust provides little to no shelter from being sued.

Additionally, assets contained in a revocable trust are considered when determining and calculating Medicaid benefits. Essentially, since the settlor can undo the trust at any time, the law considers them to still own the assets.

Irrevocable Trusts

Conversely, irrevocable trusts are trust agreements among a settlor, trustee and beneficiaries that cannot be altered or revoked by the settlor after the initial agreement has been executed and the trust is funded. Although there are rare exceptions, the trust essentially continues forever.

Typically, when a revocable living trust becomes testamentary after the death of the settlor, it also becomes irrevocable since the settlor is no longer around to alter it.

There are several benefits to creating an irrevocable trust, including removing the value of a particular asset from a person’s estate so that it is not taxable upon that person’s death. Also, with certain exceptions, placing assets into an irrevocable trust excludes it from being considered for purposes of qualifying for government programs such as Medicaid.

Finally, unlike the revocable trust, assets placed in an irrevocable trust cannot be reached by the settlor’s personal creditors as the settlor has given up control over those particular assets. This allows the settlor to continue to provide for their family members by naming them as beneficiaries while removing the assets from the reach of creditors.

Conclusion

While both revocable and irrevocable trusts offer specific benefits, choosing one, in particular, will depend on the settlor’s individual goals and objectives.

It is always best to consult with legal and tax professionals prior to making a decision as to which type of trust is best suited for your needs.

If you’re looking for help with better understanding trusts, contact our attorneys at ASR Law Firm to discuss any of your concerns, and to help you move forward with protecting your family and assets.

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