Who Controls an Irrevocable Trust? Under an irrevocable trust, legal ownership of the trust is held by a trustee. At the same time, the grantor gives up certain rights to the trust.
The grantor forfeits ownership and authority over the trust and its assets, meaning they're unable to make any changes without permission from the beneficiary or a court order. A third-party member, called a trustee, is responsible for managing and overseeing an irrevocable trust.
If a trust is a grantor trust, then the grantor is treated as the owner of the assets, the trust is disregarded as a separate tax entity, and all income is taxed to the grantor.
You cannot withdraw assets from an irrevocable trust. However, you can make plans to receive living expenses and other necessary money when you set up your trust, or you can consider another type of trust depending on what you're ultimately trying to achieve.
Dissolving an irrevocable trust can be a complex process, usually requiring consent from all beneficiaries, filing the necessary paperwork and potentially getting court approval. For instance, in states such as California, a petition to terminate the trust needs to be filed with the probate court.
With an irrevocable trust, the transfer of assets is permanent. So once the trust is created and assets are transferred, they generally can't be taken out again. You can still act as the trustee but you'd be limited to withdrawing money only on an as-needed basis to cover necessary expenses.
With many irrevocable trusts, the grantor gives up effective ownership of the assets they put in the trust, so they can't be forced to use those assets for debt or court payments. But with a grantor trust, the grantor of the trust is still thought of as the owner of the assets in that vehicle.
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.
When the grantor of an irrevocable trust dies, the trustee or the person named successor trustee assumes control of the trust. The new trustee distributes the assets placed in the trust according to the bylaws of the trust.
For protection, you must use an irrevocable trust, relinquish control, and beneficial interest, and still your trust assets may be seized as a fraudulent transfer.
They can be sold, but these transactions are typically more complicated than traditional home sales. Selling a home in California will take time. Even if you have a motivated buyer, the transaction still might not be completed for several weeks or months after an offer has been accepted.
The downside of irrevocable trust is that you can't change it. And you can't act as your own trustee either. Once the trust is set up and the assets are transferred, you no longer have control over them, which can be a huge danger if you aren't confident about the reason you're setting up the trust to begin with.
Grantor—If you are the grantor of an irrevocable grantor trust, then you will need to pay the taxes due on trust income from your own assets—rather than from assets held in the trust—and to plan accordingly for this expense.
In an irrevocable trust, the grantor typically does not have the power to remove a trustee without permission from other interested parties, such as co-trustees and beneficiaries. In these circumstances, any parties listed below can request that a trustee be removed by filing a petition with the probate court.
The IRS and Irrevocable Trusts
This means that generally, the IRS cannot touch your assets in an irrevocable trust. It's always a good idea to consult with an estate planning attorney to ensure you're making the right decision when setting up your trust, though.
Any assets that were transferred to an irrevocable grantor trust will not receive a step-up in basis upon the client's death. The effect of this ruling leads to potentially significant capital gains tax for trust assets that have appreciated significantly since being transferred to the trust.
Irrevocable trust comes in handy as it helps protect the assets, acquire benefits from the state and reduce taxes on the estate. Under the California irrevocable trust law, once the transfer starts, all the transaction details become public information and are registered with the county clerk.
The disadvantages of the grantor trust are the flipsides of the advantages. The grantor may not want to make pay the tax on the income the trust generates, even though it's a transfer free from gift tax. For example, let's say the grantor sets up an irrevocable trust for children from a prior marriage or an ex-spouse.
The property in the irrevocable trust belongs solely to the trust, and the irrevocable trust itself is a separate tax entity for all intents and purposes. This also means the irrevocable trust (or, more specifically, the trustee managing the trust) has to file its own tax return.
An irrevocable trust is different, however, because the grantor cannot change the trust after he or she signs the trust agreement. One of the main benefits of using an irrevocable trust is to protect assets from creditors and to avoid or minimize estate taxes.
In most cases, you can't transfer assets out of an irrevocable trust, especially a trust that you set up to be durable against legal hazards.
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.
And so the trustee of a trust, whether it's revocable or irrevocable, can use trust funds to pay for nursing home care for a senior. Now, that doesn't mean that the nursing home itself can access the funds that are held in an irrevocable trust. It's always the responsibility of the trustee to manage those assets.