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People often ask whether creating, funding, and maintaining a revocable living trust gives them protection from the long term care Medicaid spend down that applies when one enters a nursing home with assets, whether the revocable living trusts protects assets in the event the Settlor of the trust is sued, and people also ask what effect a revocable living trust will have on their income taxes.

Regarding whether revocable trust assets give protection from the nursing home spenddown, the answer is clear. The Medicaid Eligibility Manual provides that the trust is a resource of yours if you have the right to revoke it and use the funds for your own benefit.

Regarding protection from lawsuits (creditors), the Trust Code provides that a creditor may seize an interest in income or principal that is subject to voluntary alienation by a beneficiary. Since you can voluntarily alienate (and do whatever you want) your revocable trust assets, the assets in the trust could be seized if someone files a lawsuit against you, is successful in the lawsuit, and gets a judgment against you.

Regarding income tax, a revocable living trust is considered a Grantor Trust. Grantor Trusts are those where you have retained certain powers. One of the enumerated Grantor Trust powers is the power to revoke the trust. Thus, a revocable trust is a Grantor Trust for income tax purposes. Grantor Trusts are generally disregarded for income tax purposes during your lifetime. The IRS will treat you as the owner of your revocable trust assets. The Grantor Trust is ignored for income tax purposes, and all income is treated as belonging directly to you (the "Grantor"). During your lifetime, you will report the income from trust assets on your personal income tax return.

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This post is for informational purposes only and does not provide legal advice. Please do not act or refrain from acting based on anything you read on this site. Using this site or communicating with Rabalais Estate Planning, LLC, through this site does not form an attorney/client relationship.

Paul Rabalais
Estate Planning Attorney
www.RabalaisEstatePlanning.com
Phone: (225) 3292450