Putting Real Estate into a Trust

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There are two types of trusts: revocable and irrevocable.

A revocable trust can be terminated, usually for any reason and at any time, by the trustee.

Often the person who creates the revocable trust is also the trustee.

So, in most cases, a person loses little to no control of his real estate after he puts it into a revocable trust.

If drafted and used properly, such a trust can avoid probate and reduce or eliminate estate taxes.

This is due to the fact that when you transfer real estate into a trust, you no longer own the property.

The trust owns it.

Thus it’s not part of your estate at the time of your death.

Your successor trustee can then sell the property or transfer it to your heirs.

Unfortunately, if you need assistance paying for long-term care (e.g., residency at a nursing home), such a trust will do nothing to reduce MassHealth penalties.

To avoid such penalties, an irrevocable trust is necessary.

As its name suggests, you cannot terminate an irrevocable trust.

Once you transfer property into the trust you personally cannot transfer ownership back to yourself.

In addition, you cannot serve as trustee.

Instead you must appoint a third party to act as trustee.

If that trustee refuses to cooperate with you in the future, you’ll have little recourse other than litigation.

Although these trusts are useful, they do have some major disadvantages.

When you place real estate into an irrevocable trust

  1. You lose control of the property
  2. You typically cannot borrower against the property
  3. Your insurance premiums could increase significantly
  4. Selling the property will be more complicated and thus more expensive.

If you have questions regarding any aspect of real estate law or estate planning, please contact my office at justin@jrmccarthy.com

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