Your Revocable Living Trust Won't Protect Your Assets From Long-term Care Costs: Do This Instead

As an estate planning and elder law attorney for more than three decades, I can tell you that many people believe they've protected their assets by signing a revocable living trust.

They haven't.

Every year, I meet intelligent, financially successful families who have done almost everything right. They've accumulated retirement savings, worked with financial advisers, signed comprehensive estate planning documents and funded a revocable living trust.

Then one spouse develops Alzheimer's disease, Parkinson's disease or another chronic illness requiring years of home care, assisted living, memory care and eventually nursing-home care.

That's when they discover that their perfectly drafted trust is of no help, because it was designed to solve a different problem.

The ultimate question is not whether you have a trust. It's whether you have the right trust for the problem you need to solve.

A revocable living trust (often abbreviated as an RLT) is one of the best estate planning tools available. Unlike a will, an RLT trust protects your assets from probate and provides many other benefits, making it one of the most popular estate planning tools in the country.

But an RLT does not protect your assets from lawsuits or the potentially catastrophic expenses of long-term care.

Why doesn't an RLT protect assets?

The answer is simple.

An RLT works because you effectively remain the owner of all trust assets, and you retain complete control of those assets, including the ability to remove any or all assets from the trust at any time.

Because the assets remain yours, they remain available to pay any bills you owe, including long-term care bills. The assets in your RLT are treated as if they still belong to you and remain available to creditors, including the biggest creditor most people face in their lifetimes — a nursing home.

People often spend thousands creating and funding an RLT believing they've solved both the probate and the long-term care problem, when they've solved only the probate problem.

Unfortunately, many estate planning attorneys never explain this distinction because most don't practice in the area of Medicaid planning. They never discuss the irrevocable Medicaid Asset Protection Trust (MAPT) as an option.

As a result, many families discover the difference only after a health crisis, when planning options are limited.

What an RLT does well

None of this diminishes the value of an RLT.

I regularly recommend revocable living trusts to clients. My firm has prepared thousands of revocable living trusts.

A properly drafted and funded revocable living trust:

• Avoids probate
• Provides continuity if you become incapacitated
• Controls how and when beneficiaries receive an inheritance
• Keeps your affairs more private than a probate estate
• Can protect young or financially inexperienced beneficiaries from receiving large distributions outright
• Can provide ongoing asset protection to trust beneficiaries through the creation of spendthrift trusts, sometimes called dynasty trusts or beneficiary asset protection subtrusts

These are all important benefits. But none of them matter if you die broke because you spent all your money paying for long-term care.

As good as the revocable living trust is, in the past 15 years, my firm has prepared more MAPTs than revocable living trusts because once older clients understand the distinction, many choose a trust that not only avoids probate but also helps protect assets from long-term care costs.

We call our version the Living Trust Plus®. It's a proprietary MAPT system that we license to attorneys throughout the country to offer this type of planning to their own clients.

But most estate planning attorneys don't offer this type of trust planning. Helping clients protect their assets from long-term care costs is not on the radar of many estate planning attorneys.

Medicare won't pay the bill

Another common misconception is that Medicare will pay for long-term care. It won't.

Medicare doesn't pay a penny for long-term care. Families must rely on their own income and assets, long-term care insurance, certain veterans benefits or Medicaid, which is the biggest payor of nursing home expenses in the country.

What makes a Medicaid Asset Protection Trust different?

A MAPT is designed to solve not only the probate issue, but two additional problems. I call my version of the MAPT the Living Trust Plus because it protects your assets from probate plus lawsuits plus long-term care expenses.

Instead of retaining ownership of trust assets, you give up ownership and the ability to reclaim the protected assets. That creates the protection.

However, despite giving up ownership, you can retain a high degree of control of assets in the trust.

You can be the trustee of your own trust, meaning you can control how the assets are invested, whether your home gets sold and when assets get distributed to a trust beneficiary. You can even change the beneficiaries of the trust.

If you, as trustee, decide to distribute assets to a trust beneficiary, such as an adult child, that child can use the distributed money however they see fit, and you can't control what the child does with that money or have any type of agreement on how they use their money.

The child can spend the money for themselves, or they can, if they wish, spend the money for your benefit.

Planning using a MAPT must begin years before nursing home care is needed. The five-year Medicaid lookback period means waiting until a nursing-home admission or after a stroke could eliminate this planning opportunity.

Readers interested in learning more about Medicaid Asset Protection Trusts and other planning tools can find additional educational resources in our Elder Law Learning Hub.

For readers who want a more comprehensive discussion of probate avoidance, Medicaid Asset Protection Trusts and long-term care planning strategies, my bestselling book, Protecting Your Assets from Probate and Long-Term Care (Second Edition): Don't Let the System Bankrupt You and Your Loved Ones, explores these issues in greater detail.

Related Content

• Who Needs a Trust and Who Doesn't? A Financial Planner Explains
• Is Your Estate at Risk? The 5 Trusts You Need to Understand
• Revocable vs Irrevocable Trusts: It Comes Down to Control vs Protection
• What Assets Should Not Be Placed in a Revocable Trust?
• What You Need to Know About Long-Term Care Before You Need It

This article was written by and presents the views of our contributing adviser, not the Kiplinger editorial staff. You can check adviser records with the SEC or with FINRA.