What protection is available with a revocable living trust?

UPDATED: Jul 19, 2023Fact Checked

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Jeffrey Johnson

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 19, 2023

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UPDATED: Jul 19, 2023Fact Checked

A revocable living trust is a vehicle that is very helpful in avoiding probate. Probate is the process in which the court oversees the distribution of property that belongs to a deceased person at the time of death, after all the deceased’s debts and taxes have been paid. During your lifetime, you can transfer ownership of your assets to a revocable trust so that the assets are owned by the trust at the time of your death, and therefore not subject to probate.

What is a Revocable Living Trust?

A revocable trust is one that you can revoke, which means you can take the property back or change the terms of the trust as long as you are alive and competent to make such decisions. Because you retain control of the trust, your creditors can take those assets during your lifetime if you owe them money, even though you have transferred ownership of the assets to the trust. However, the trust does make it more difficult for creditors to access these assets. The creditor has to petition a court for a charging order before the creditor can get to the assets held in the trust.

When Does a Revocable Trust Become Irrevocable?

In most instances, a revocable trust becomes irrevocable upon the death of the grantor. This means that the assets in the trust can no longer be taken back, and they have to be distributed to the beneficiaries of the trust as the trust document directs. While creditors of the deceased can try and collect from the trust’s assets, once the trust is irrevocable, the trust beneficiaries are usually not able to use the assets of the trust as collateral for their debts, so their creditors can’t get to the assets of the trust.

While the assets are held in the trust, the beneficiaries do not have control over the property, and any distributions are subject to the trustee’s discretion. Creditors cannot force a trustee to make a distribution to the trust beneficiaries, thus the assets held in a trust can remain outside the reach of the beneficiaries’ creditors as long as they are held by the trust. Once assets are distributed to the beneficiaries, creditors can attach them as they can any other property owned by the beneficiaries.

Case Studies: Protection With a Revocable Living Trust

Case Study 1: Probate Avoidance

John, a resident of State X, creates a revocable living trust and transfers ownership of his real estate properties, bank accounts, and investments to the trust. Upon John’s death, the trust assets pass directly to his designated beneficiaries without going through probate. This allows for a smooth and efficient transfer of assets while maintaining privacy and reducing administrative costs.

Case Study 2: Creditor Protection

Mary, a business owner in State Y, establishes a revocable living trust and transfers ownership of her business assets to the trust. By doing so, she separates her personal assets from her business assets, providing a layer of protection against business-related creditors. In the event of a legal claim against her business, the assets held in the trust are shielded from potential seizure or attachment.

Case Study 3: Control and Distribution

Sarah, a parent in State Z, creates a revocable living trust and names her minor children as beneficiaries. The trust specifies that the assets held in the trust will be managed by a designated trustee until the children reach a certain age. This ensures that Sarah’s assets are protected and managed responsibly for the benefit of her children, even if she is no longer around to oversee their financial affairs.

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Jeffrey Johnson

Insurance Lawyer

Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

Insurance Lawyer

Mary Martin

Published Legal Expert

Mary Martin has been a legal writer and editor for over 20 years, responsible for ensuring that content is straightforward, correct, and helpful for the consumer. In addition, she worked on writing monthly newsletter columns for media, lawyers, and consumers. Ms. Martin also has experience with internal staff and HR operations. Mary was employed for almost 30 years by the nationwide legal publi...

Published Legal Expert

Editorial Guidelines: We are a free online resource for anyone interested in learning more about legal topics and insurance. Our goal is to be an objective, third-party resource for everything legal and insurance related. We update our site regularly, and all content is reviewed by experts.

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