Whether you’re preparing your estate to pass on to loved ones, or helping guide a parent in that process, estate law can be tricky and unfamiliar grounds. One of the most important aspects of estate preparations is figuring out what to do with one’s home and property, and how to ensure that property is transferred to the right party when the time comes. Life estate and irrevocable trusts are two different methods to go about this, each with advantages and disadvantages. See which one is right for you. (For more, see: Estate Planning: Living Trusts vs. Simple Wills.)
What is a Life Estate?
A life estate, when used to gift property, splits ownership between the giver and receiver. Many parents set up a life estate to reduce their assets in order to qualify for Medicaid. Even though the parent still retains some interest in the property, Medicaid does not count it as an asset. A life estate lasts for the lifetime of its creator. It prohibits the selling of the assets without the permission of its beneficiaries. For example, a parent cannot sell a home without permission from his children if his children are beneficiaries in the life estate. (For more, see: 7 Reasons to Own Life Insurance in an Irrevocable Trust.)
What is an Irrevocable Trust?
If you’re trying to get eligibility for Medicaid and are worried that your home will disqualify you, consider getting an irrevocable trust. For example, if a husband and wife both own a home, the husband can transfer his portion to his wife. His Medicaid eligibility will not include the home.
However, there needs to be a five-year gap between the creation of the trust and the application for Medicaid. Otherwise, those funds will be counted as part of existing assets when determining Medicaid eligibility. This means that you cannot start an irrevocable trust shortly before applying for Medicaid if you want to receive those benefits. One of the downsides of an irrevocable trust is that the founder of the trust relinquishes any rights he has to the home. However, the beneficiary of the trust cannot sell the home unless they are also named a trustee. Once an irrevocable trust has been created, the trustee cannot take back control of the trust. (For more, see: Build a Wall Around Your Assets.)
How the Two Compare
CFP Johanna Turner of Milestones Financial Planning LLC said it’s important to remember that a life estate and an irrevocable trust are not necessarily an either-or scenario. “You can put something into an irrevocable trust (like a residence) and retain a life estate,” she said. “You are ‘irrevocably’ transferring ownership of your house to the trust, but you still retain control. In this scenario, you could sell the house, remodel, rent out part of it, etc., but the house itself - or the sales proceeds from it - would stay in the trust.”
In this scenario, a parent would also not risk giving their children part of the tax liability that comes with owning a house. The parent would retain more personal control over the house and would not need their child’s permission to sell the home. This would be the best option. It would still allow the parents to apply for Medicaid and not have the property count in their assets, but they would remain the sole decision makers for the house.
The Bottom Line
A home is typically the most valuable thing you can leave behind, so make sure to protect yourself and your beneficiaries by using an irrevocable trust or life estate. Both have their advantages, but a mix of the two is often the best solution. (For more, see: Trust Options You Should Consider.)