Napolitano looks at trusts

When it comes to implementing an estate plan, the word irrevocable is commonly part of the conversation. While it may sound scary to do anything irrevocable, in estate planning there are several instances where it may make sense.

The first of these would be for asset protection. When assets are left outright to heirs, these assets are free for the heirs to do whatever they want. While that may make sense in many cases, let me highlight a few where it may not be optimal.

Let’s suggest that your lovely daughter has three terrific grandchildren and an OK-to-problematic spouse. Leaving your assets outright to your daughter may result in them becoming jointly owned with your son-in-law. Should your daughter prematurely pass, the assets are now the sole property of your iffy son-in-law, and not your grandchildren. If your assets were left to your daughter through an irrevocable trust, the assets would be under the control of a trustee of your choosing for the benefit of your daughter and grandkids only.

That trustee could be a professional or another trusted family member. You may even build the ability for your daughter’s beneficiary to change trustees should a falling out occur later in life between the trustee and the beneficiaries. The trust may have fairly liberal terms to allow for distributions for the beneficiaries and others at the trustee discretion. But to maintain the asset protection desired, it may be best if the assets in those trusts are not used for day to day living.

Another is with life insurance. Life insurance owned or controlled by the insured is often includable in decedent’s estate. Whether the policy would be subject to estate taxes depends on the size of the policy and the estate. For federal purposes, the death tax threshold is $11.18 million per individual. In Massachusetts, the death tax begins when assets (including the death benefit of owned life insurance) reaches $1 million per decedent.

However, if the life insurance policy is owned by an irrevocable trust with an independent trustee other than the insured, the policy may avoid being included within the insured’s estate for tax purposes. There are other nuances regarding the governance of the trust and how the money gets to the trust to pay the premiums, but they’re fairly simple and administrative in nature.

Irrevocable also makes sense with respect to gifting a business or investment real estate to children or minors.

To avoid or reduce estate taxes, many wealthy families tend to wait too long in making gifts to the next generation. If minority interests in businesses or business real estate were gifted through an irrevocable trust or other entity, the assets could be protected from creditors of the minority owners and preclude the minority from blowing the money, affecting the management or operations of the underlying business, or receiving any distributions from the business or the trust.