Irrevocable Trust Attorney

An irrevocable trust is a trust that generally cannot be revoked by the grantor after it is created and funded. Depending on how it’s drafted, the grantor may give up certain rights to the trust assets (which can support goals like asset protection, tax planning, or Medicaid planning), but some limited powers or indirect influence may still be possible without defeating those goals.

Common types include Medicaid Asset Protection Trusts, Irrevocable Life Insurance Trusts (ILITs), Special Needs Trusts, Charitable Trusts, and Legacy or Dynasty Trusts.

Creating one typically involves drafting a written trust agreement that complies with Florida law, selecting a trustee, identifying beneficiaries, signing the trust documents (often with notarization), and then funding the trust by retitling assets into the trust.

Generally, an irrevocable trust can’t be changed by the grantor alone. However, Florida law may allow modification or termination in certain situations—such as by court order, by a trustee using Florida’s decanting statute (if the trust and statute requirements are met), or by agreement of the qualified beneficiaries in limited circumstances (often subject to court approval and/or the trust’s material purposes).

Irrevocable trusts may have federal income tax and estate/gift tax consequences. Some irrevocable trusts are treated as grantor trusts for income tax purposes (meaning the grantor pays the income tax), while others file and pay tax at the trust level. Whether trust assets are removed from the grantor’s taxable estate depends on how the trust is structured and what powers or benefits the grantor retains.

In Florida Medicaid planning, certain properly structured irrevocable trusts may help keep some assets from being treated as available resources—if the trust limits the applicant’s access and is created far enough in advance. Transfers to or into certain trusts can trigger a penalty period under the federal 5-year Medicaid look-back rules as applied in Florida. Because the rules are technical, this should be reviewed with a Florida elder law/Medicaid planning attorney.

An irrevocable trust can provide asset-protection benefits in some situations because the grantor may no longer own the assets. However, protection depends on the trust’s terms, timing, and funding, and there are important exceptions (for example, transfers intended to hinder creditors, certain government claims, or situations where the grantor retains too much control or is also a beneficiary).

Trustees must manage the trust prudently, follow the trust terms, act in the best interests of beneficiaries, maintain records, file tax returns, and avoid conflicts of interest.

Funding may include transferring real estate, financial accounts, life insurance policies, business interests, or personal property into the trust’s name.

If assets are not titled correctly in the trust, they will not receive legal protection or achieve the tax and Medicaid planning goals intended.

Florida trusts are governed primarily by Florida Statutes Chapter 736. To be valid, a trust generally requires a settlor with capacity and intent, a lawful purpose, a trustee with duties, and identifiable beneficiaries (with some exceptions). The trust is typically created by a signed written instrument, and additional formalities may apply depending on the assets and planning goals.

Yes. Assets placed in an irrevocable trust bypass the probate process and are distributed according to the trust terms.

Many irrevocable trusts can last for multiple generations, depending on the trust design and Florida’s rule against perpetuities.

Individuals seeking asset protection, Medicaid planning, long-term care planning, estate tax reduction, or structured inheritance planning may benefit.

You should consult The Florida Estate Firm when establishing an irrevocable trust, transferring significant assets, developing a Medicaid strategy, or modifying an existing trust under Florida law.