Is It Time to Have Your Irrevocable Trust Reviewed by an Attorney?

Is It Time to Have Your Irrevocable Trust Reviewed by an Attorney?Our Santa Fe Irrevocable Trust Attorneys at Life Leaf Legal previously have addressed the many benefits that an irrevocable trust brings to an estate plan, which include reduced tax liability, creditor protection, probate avoidance, and more. Nonetheless, an important reason that an estate plan should be periodically reviewed with an experienced living trust lawyer is that sometimes changes in circumstances or the law can neutralize the benefits of a trust so that it no longer makes economic sense.

When a trust has outlived its usefulness or been rendered obsolete by changes in the law or other factors, the best option may be to terminate the trust. Many people do not realize that even an irrevocable trust may be eliminated under the right circumstances. While the specifics of how to nullify an irrevocable trust will vary depending on the specific laws of the jurisdiction, this is an option that is available and may make sense for some individuals. We have provided an example of a situation in which it might make sense to eliminate an irrevocable trust.

A bypass trust provides a vehicle whereby assets in the amount of the federal gift and estate tax exemption of the first spouse to die are transferred into a trust. The surviving spouse maintains access to the earnings generated by the trust and even the principal when necessary. When the surviving spouse passes away, the trust assets bypass the surviving spouse’s estate and pass directly to the couple’s children. The primary purpose of this type of bypass trust is to preserve the first to die spouse’s estate tax exemption for the couple’s children.

While this strategy made sense if the bypass trust was created when the estate tax exemption was as low as $675,000 per individual in 2001 or even $2 million in 2008, Congress has since made the estate tax exemption of $5 million ($5.25 million adjusted for inflation in 2013) permanent and authorized each spouse to employ the unused exemption of the first to die spouse. In short, a married couple can now exempt $10.5 million from federal estate tax without resorting to use of a bypass trust. Even if your spouse passed away before the law authorized inheriting the unused estate tax exemption of a spouse, you may still not need your bypass trust if your assets are below $5.25 million.

If the assets in your trust do not exceed $10.5 million for a married couple or $5.25 million for a surviving spouse whose partner died prior to the law permitting use of a predeceased spouse’s estate tax exemption, the elimination of a bypass trust can result in a reduced tax obligation. When you pass away, assets in your trust have their tax basis stepped up based on current market value. The stepped up tax basis means that beneficiaries can sell the asset without showing any capital gain. Additionally, any income above $11,950 is taxed at the highest individual income tax rate.

Given the tax benefits of eliminating a bypass trust when an estate’s assets do not exceed the thresholds discussed above, you may benefit from seeking the advice of a Santa Fe Irrevocable Trust Lawyer about the merits of winding down the trust. There are provisions under state law that allow an irrevocable trust to be eliminated, such as where the trust is small or it is no longer economically beneficial to maintain the trust. It also may make sense to continue a trust if you live in a state with estate and gift taxes. The trustee can terminate the trust under the right circumstances, or sometimes a judge may do so if the trustee refuses to cooperate.

Undesirable Consequences of Failing to Draft a Will

The above information is designed solely to illustrate general principles of law, and does not constitute a specific legal opinion on individual cases. We suggest that you contact experienced legal counsel for a specific opinion tailored to your individual circumstances.

However, this is not a step that should be taken without legal advice because there may be offsetting benefits that merit maintaining a bypass trust. For example, the assets in the trust are protected from creditors within the trust. If you have questions about irrevocable trusts, our Santa Fe, NM Estate Planning Attorneys at Life Leaf Legal Group, PC offer a free consultation in our centrally located offices in Santa Fe and Albuquerque so that we can discuss your specific situation. Call us today to schedule your free consultation at (505) 856-3591 to learn about your rights and options.

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