This is another in a series of blogs on the basics of estate planning. Last week, we looked at the fundamental nature of a trust. This week, we’ll look at some of the different types of trusts.
Trusts may be categorized in many ways. One useful way to differentiate between trusts is intervivos and testamentary. An intervivos trust is simply a trust which is created during life. Another name for an intervivos trust is a living trust. A trust need not have intervivos or living in its title. A trust, intervivos or testamentary, may be named whatever is desired by the client, as long as it is not misleading or in violation of copyright, for example.
Conversely, a testamentary trust is one created at death. A testamentary trust is, by its nature, not revocable by its grantor. Of course, the document creating the testamentary trust might be revoked prior to the death of the grantor. For example, a Will could create a testamentary trust. The Will could be revoked during the life of the testator/grantor and a new Will could be drafted which has different terms for the testamentary trust.
An intervivos trust might be income taxed to its grantor. A testamentary trust is not income taxed to the grantor. (We’ll discuss more on the income taxation of trusts in a future blog).
Intervivos trusts may be either revocable or irrevocable. In some states, if a trust does not specify whether or not it is revocable, it is revocable. In other states, a trust is irrevocable unless specified otherwise. Therefore, it is always prudent to specify whether a trust is revocable or irrevocable.
A revocable trust means that it may be modified or revoked by the grantor during life while the grantor has capacity. A revocable trust may also be restated. A restatement leaves the shell of the trust but guts the substantive provisions and replaces them with the new ones. When a trust is created, assets are retitled into the name of the trust. If one simply does a new trust, the assets would need to be retitled into the new trust. A restatement obviates the necessity of retitling the assets into a new trust because the old trust still exists, only its terms have changed. Typically, a restatement is more convenient than amendments which require referencing back to the original trust and may be cumbersome. Also, when amending a trust, the drafting attorney risks being liable for any errors in the drafting of the underlying document. This is fine if the drafting attorney’s firm drafted the underlying document and has that liability anyway. However, if someone else drafted the underlying document, then a restatement is typically the best route to go. Otherwise, it is necessary to go through the original document with a fine-tooth comb to ensure there are no drafting errors in its language. If you are doing a restatement, errors in the language of the original document become irrelevant as the underlying document has been replaced in its entirety. Only the shell has been retained and the restatement document has added all new substantive provisions. As a result, restating a trust is often far more efficient and less time-consuming than amending a trust.
An irrevocable trust is a trust which may not be revoked, restated, or amended by the grantor. Once it has been drafted, it is etched in stone. This does not mean the trust cannot have flexibility. We’ll look at how to draft a trust with flexibility in an upcoming blog.
Stephen C. Hartnett, J.D., LL.M.
Associate Director of Education
American Academy of Estate Planning Attorneys, Inc.
9444 Balboa Avenue, Suite 300
San Diego, California 92123
Phone: (800) 846-1555
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