In Florida, the main difference between a revocable trust and an irrevocable trust is that a revocable trust can be amended or revoked during the settlor’s (i.e., creator of the said Trust and whose assets are used to fund the Trust) lifetime, while an irrevocable trust cannot. In terms of asset protection, a revocable trust is rarely used as part of an asset protection plan, while irrevocable trusts are useful in several asset protection contexts.
A Trust is a contract between a maker of the subject trust (often called a grantor or settlor) and a trustee set up for the benefit of named beneficiaries. A maker of the said trust transfers legal title of their property to a trustee who holds the title and property as a fiduciary for the benefit of named current and future beneficiaries. Again, a settlor is the entity that establishes a trust. The term of settlor is encompassed by several other names such as donor, grantor, trustor, and trustmaker. Regardless of what this entity is called, its role is to legally transfer control of an asset to a trustee who manages it for one or more beneficiaries.
Trusts are essential tools for estate planning. People anticipate conveying their assets to estate planning trusts, but they often do not understand how various types of trusts fit into the estate planning process. Trusts have many purposes, including avoiding probate, reducing estate taxation, or protecting assets from creditor risk. The type of trust and the terms of trust depend on the priority of various planning goals.
Trusts are primarily differentiated by whether they are revocable or irrevocable. A revocable trust conveys assets to a trust expressed by a written trust agreement which expressly reserves the settlor’s right to revoke the trust entirely or amend any part of the trust agreement for any reason during the settlor’s lifetime. Most estate planning trusts that direct the disposition of the settlor’s property upon death are revocable trusts. These estate planning trusts are called “living trusts” because the settlor retains complete control benefits of the trust while he is living.
An irrevocable trust is a trust whose trust agreement prohibits revocation or amendment. Transfers to irrevocable trusts are final conveyances, with some few exceptions. A settlor cannot change his mind about transfers he makes to an irrevocable trust.
Some trusts are designed to be irrevocable from their inception; others start out revocable and later become irrevocable. An example of a trust that starts out irrevocable is a trust set up to make gifts to the settlor’s children during the settlor’s lifetime. Assets transferred to an irrevocable children’s trust are the children’s property. The trustee, as a fiduciary, must use the principal assets and trust income for the children’s benefit and not for the direct benefit of the settlor. Of course, using the trust money for the children’s education, for example, usually indirectly benefits the settlor.
An example of a lifetime irrevocable trust in Florida is an insurance trust. There are tax benefits and asset protection benefits of owning life insurance in the name of an irrevocable trust. The death benefit of life insurance (the amount paid to family members or whatever named beneficiary upon the insured’s death) is part of the insured’s taxable estate, except when the life insurance is owned by an irrevocable trust. For example, death benefits paid to family members are vulnerable to their creditors upon receipt, however, the death benefits are creditor-protected if the money is held inside a properly drafted irrevocable insurance trust.
A revocable trust becomes irrevocable upon the death of all settlors. The trust is locked at death, and the settlor’s heirs (the future trust beneficiaries) cannot change the terms of such inherited trust, with very few exceptions. The said trust becomes irrevocable. No one can change the terms of the trust or add property to it. Also, the trust settlor is no longer the trustee, instead, a successor trustee takes over. The settlor’s written notes, memorandum given to family members, or oral instructions given to family members during his lifetime will not change the revocable trust’s estate plan once it becomes irrevocable.
A revocable living contains written instructions for how the settlor desires to distribute his assets after death. The process of transferring assets, paying debts, and following the settlor’s instructions is referred to as trust administration. Trust administration is directed by the persons the settlor nominated to serve as their successor trustee(s). Trust administration in Florida is the legal procedure whereby a successor trustee of an existing trust carries out the trust document’s instructions after the settlor’s death. Trust administration refers to the tasks associated with managing the assets, distributions, and filings of a trust. Said tasks can often be quite complex and time sensitive.
Trust administration involves several tasks. For example, the family must first confirm their understanding of the settlor’s written instructions expressed in their trust agreement, and any disagreements regarding the trust instructions must be resolved. The successor trustee must find out if the settlor owed money or was subject to any legal claims. The successor trustee must use non-exempt trust assets to satisfy debts and settle claims. The settlor’s income tax liability for the year of death must be determined and paid. The successor trustee also must determine if the settlor’s taxable estate is subject to estate taxation.
Only after the trust administration is substantially completed may the successor trustee distribute trust assets to the settlor’s heirs or beneficiaries according to the settlor’s written instructions. After assets are distributed and the administration is complete, the successor trustee can close the trust. Successor trustees should get a written agreement among all beneficiaries that the subject trust administration has been successfully completed so that the said living trust and all of its trust accounts may be closed.
The foregoing is just a general and brief overview of the subject of revocable and irrevocable trusts in the state of Florida.
If you have any additional Questions regarding the foregoing or have any legal issue or concern, please contact the law firm of CASERTA & SPIRITI in Miami Lakes, Florida.