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The Pitfalls of Irrevocable Trusts in Georgia

Posted by Joel Beck | Jul 27, 2023 | 0 Comments

Estate planning is a critical task that requires a thoughtful approach. Often, our clients ask us about irrevocable trusts and whether they should establish one. While irrevocable trusts have benefits, it's crucial to understand that they come with potential drawbacks too, especially in the context of Georgia law.

Understanding Irrevocable Trusts

An irrevocable trust is a type of legal arrangement that, once established, generally cannot be altered, amended, or terminated without the permission of the trust beneficiary or beneficiaries, as well as the court. The grantor or trustmaker transfers assets into the trust, effectively relinquishing control over those assets. This can have significant benefits, including potential tax advantages and protecting assets from future creditors.

However, this permanency, which can initially seem like a strength, is also the root of many potential pitfalls associated with irrevocable trusts. It's important to consider these carefully before making a decision.

Lack of Flexibility and Control

The first major drawback of irrevocable trusts is the lack of control and flexibility. Once assets are transferred into the trust, the trustmaker no longer owns them. This could be problematic if circumstances change in the future, like sudden financial difficulties or changes in the family structure. Unlike revocable trusts, the terms of an irrevocable trust can't be easily modified to adapt to new situations.

The trustmaker also loses control over how the assets are managed. The trust assets are controlled by a trustee, who is required to manage them in the best interest of the beneficiaries. However, the trustmaker must trust that the trustee will do so effectively and responsibly.

Complications with Medicaid Eligibility

Another potential risk involves Medicaid eligibility. Many people establish irrevocable trusts as part of Medicaid planning, with the hope of protecting their assets while still qualifying for government assistance to pay for long-term care. However, transfers to an irrevocable trust may still be subject to Medicaid's five-year look-back period. If not properly timed, this could result in a penalty period of Medicaid ineligibility.

Furthermore, Georgia law has specific regulations related to Medicaid and trusts. It's critical to understand these rules and work with a skilled elder law attorney to navigate them properly. While we don't handle Medicaid planning, we can often refer people to elder law attorneys in the area.  

Tax Implications

The tax implications of irrevocable trusts can also be a drawback. Trust assets may be subject to estate taxes upon the death of the trustmaker, and the trust may be liable for income taxes on any income generated by the trust assets.

Additionally, in Georgia, the Department of Revenue has the right to tax the income of irrevocable trusts under certain circumstances. Therefore, it's important to understand the tax implications before establishing an irrevocable trust.

Handling the Complexities of Estate Planning with Peach State Wills & Trusts

Estate planning is not a one-size-fits-all process. It requires a deep understanding of your specific circumstances, goals, and the complex legal landscape of Georgia law.

At Peach State Wills & Trusts, we are committed to providing personalized, professional, and friendly estate planning services. We understand that discussing topics like trusts and other estate planning tools can be overwhelming, but we are here to guide you every step of the way, ensuring you make the best decisions for you and your family.

Contact Peach State Wills & Trusts at 678-344-5342 to learn how to plan for your future in Georgia today. If you have any questions about estate planning in Georgia, you can download our free guide here, no strings attached. We look forward to assisting you with your estate planning needs.

About the Author

Joel Beck

Joel Beck founded The Beck Law Firm, LLC in 2007. His firm focused on business law and estate planning needs of clients, two areas that he was drawn to based upon personal and business experiences in his life, including a ten-year career at NASD (now known as FINRA).


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