A bypass trust is designed to be irrevocable. Beneficiaries - A bypass trust names residual beneficiaries in addition to the surviving spouse. A survivor's trust only names the surviving spouse. Duration - A bypass trust can extend beyond the surviving spouse's lifetime.
A Survivor's Trust, on the other hand, is revocable. The revocable nature of a Survivor's Trust allows the surviving spouse to make any changes they deem necessary, including terminating the Trust altogether.
A major disadvantage of a bypass trust is the loss of the second income tax basis step up at the death of the surviving spouse for the assets in the bypass trust. When someone dies, the capital basis of the person's assets, with certain exceptions, is adjusted to the fair market value at the person's date of death.
As a result, a (non-grantor) bypass trust will typically file its own Form 1041 income tax return, reporting its own income (i.e., from the portfolio and other assets that it holds), claiming its own deductions, and paying its own trust tax bill.
Failing to fund your trust can lead to significant delays in the distribution of your assets. When assets go through probate, it can take months or even years before beneficiaries receive their inheritances. This can cause financial strain and frustration for your loved ones.
Franke, Jr. Yes, once the trust grantor becomes incapacitated or dies, his revocable trust is now irrevocable, meaning that generally the terms of the trust cannot be changed or revoked going forward. This is also true of trusts established by the grantor with the intention that they be irrevocable from the start.
The surviving spouse has full control over their survivor's trust, but may have limited control over the deceased spouse's accounts and property that make up the decedent's trust.
For instance, if a revocable trust has two grantors, it may still remain revocable until all these people have passed away. However, the deceased person's outstanding debts from the revocable trust do not go away, and creditors will still be entitled to the assets listed in the document.
Selecting the wrong trustee is easily the biggest blunder parents can make when setting up a trust fund. As estate planning attorneys, we've seen first-hand how this critical error undermines so many parents' good intentions.
With the new IRS rule, assets in an irrevocable trust are not part of the owner's taxable estate at their death and are not eligible for the fair market valuation when transferred to an heir. The 2023-2 rule doesn't give an heir the higher cost basis or fair market value of the inherited asset.
One way to tell if a trust is revocable or irrevocable is to look at the title. Many revocable trusts will have the word “revocable” or “living trust” in the title, but this is not required. The best way to determine if you are looking at a revocable or irrevocable trust is to read the trust document.
The deceased spouse's Bypass Trust became irrevocable upon the first spouse's death, and the surviving spouse's one-half (½) could still be amended by the surviving spouse during her/his life.
Assets in a bypass trust do not receive a step-up in basis.
Usually, the deceased spouse's portion of the couple's property, at least up to the applicable exclusion amount ($11.7 million), is put into trust B (the bypass trust). This trust is irrevocable and will pass to the beneficiaries other than the surviving spouse (usually their children).
In many cases, the spouse can inherit your house even if their name was not on the deed. This is because of how the probate process works. When someone dies intestate, their surviving spouse is the first one who gets a chance to file a petition with the court that would initiate administration of the estate.
In summary, when a grantor dies, their revocable trust becomes irrevocable, and the successor trustee steps in to manage the assets, including real estate. The trustee ensures the trust's terms are carried out, settling debts, paying taxes, and distributing assets to beneficiaries according to the trust's instructions.
Revocable trusts last as long as you want them to and can be canceled at any time. At the time of your death, a revocable trust becomes irrevocable. Irrevocable trusts are permanent. They last for your entire lifetime and after you've passed.
The other situation in which assets can be transferred out of an irrevocable trust is when you and any other beneficiaries get together, agree that assets need to be transferred out, then petition a court to do so. Depending on the documents of your trust, the trustee might need to be involved, as well.
When it comes to protection of assets, an irrevocable trust is far better than a revocable trust. Again, the reason for this is that if the trust is revocable, an individual who created the trust retains complete control over all trust assets.
Bypass trusts are a powerful tool in estate planning, offering significant benefits such as estate tax reduction, asset protection, and control over asset distribution. However, they also come with drawbacks, including loss of direct control and potential administrative costs.
Funding a bypass trust with a promissory note is acceptable as long (1) your trust permits investing in a promissory note; (2) you do it quickly after the death of the first spouse; and (3) the promissory note bears sufficient interest. On the death of the first spouse, you need to make critical decisions.
The document creating the trust doesn't meet the legal requirements; The trust was created or modified by fraud; The creator of the trust lacked the capacity to create the trust; or. Someone exercised undue influence over the creator of the trust.