Living Trusts: Should I Get a Revocable or an Irrevocable Trust?

There are several tools available to accomplish estate planning goals.  One of the most frequently used tools by estate planning attorneys is referred to as a “trust.”

Trusts come in all shapes and sizes.  You can create a trust during your lifetime (called a “living” trust).  Alternatively, you can have your trust come into existence upon your death (called a “testamentary” trust).

Let’s talk about living trusts.  There are two main types of living trusts.

Revocable Trusts: Frequently used to transfer assets to family members following the creator’s death

Advantages Disadvantages
Can be used to avoid the probate court process (cutting down on time and expense to administer someone’s affairs) No nursing home protection for assets placed into trust**
Allows the creator to appoint one person (oftentimes a child) to pay final bills and distribute assets Need to make sure that all of your assets are directed towards the trust upon your death with correct titling or beneficiary designations
Can be changed or updated at any time by the creator Otherwise, we may need to use the probate court process to transfer assets to your trust (eliminating the advantage of the trust)
Flexible if family circumstances change


Irrevocable Trusts: Frequently used to protect assets from being used for nursing or long-term-care expenses

Advantages Disadvantages
Once an asset is owned by the trust for 5 years, it is exempt from being used to pay for assisted living or nursing home expenses The creator is unable to change the terms of the trust after it has been established
If you have a falling out with a beneficiary, you can’t “take them out” of the trust
Once an asset is owned by the Irrevocable Trust, the trust gets the proceeds if the asset is sold
If you put your house into an Irrevocable Trust and sell it 7 years later, the trust gets the home proceeds. The funds can’t be used for the creator’s own personal expenses (vacation, paying bills, paying rent in a new apartment, etc.)

If you have questions about which type of living trust is right for you, our estate planning attorneys are ready to assist you.

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Jon L. Fischer

Estate Planning and Elder Law Attorney at McCarty Law LLP
Jon focuses his practice on estate planning, probate matters, and Medicaid planning as he aims to help clients in their time of need.