In the past, the IRS allowed a basis upgrade for assets within an irrevocable trust. However, the landscape has shifted with the introduction of Rev. Rul. 2023-2. Now, unless these assets are part of the original owner’s (or “grantor’s”) taxable estate, the basis remains unchanged. To qualify for the basis upgrade, the assets of the irrevocable trust need to be part of the taxable estate when the grantor passes away. This change is significant from an income tax perspective.  When assets are includable in a decedent’s estate and are then sold, there is no capital gain realized and no income tax due on the sale of the asset because of the rule that “steps up” the basis of an asset when transferred upon death.  For income tax purposes the price of acquiring the asset is factiously increase to the value of the asset at the time of death. An asset purchased for $5,000 may have appreciated to $50,000 in value.  If sold by the owner, the owner would have to pay taxes on a $45,000 capital gain.  But if sold by the owner’s child following the owner’s death, the capital gain would disappear and not income tax would be due.

The $12.92 million individual gift and estate tax exclusion in effect in 2023 ($25.84 million for couples) ensures that only a fraction of estates in the U.S. are subject to any gift and estate tax at all. Before Rev. Rul. 2023-2, upon sale of the asset the irrevocable trust beneficiaries could benefit from a stepped-up basis for income tax (capital gains tax) purposes.  Now income tax will become due on the sale of the asset calculated in accordance with the decedent’s basis for tax purposes.    

In 2021, out of 6,158 estates that filed estate tax returns, only 2,584 (or 42%) had to pay estate and gift tax. Many more deaths occurred, but no returns were required to be filed.  In 2026, without further legislation, the gift and estate tax exclusion will revert to the exemption amount set in 2017 of an inflation-adjusted $5 million.

So, why opt for an irrevocable trust? One common motive is to exclude assets from personal ownership to become eligible for Medicaid’s nursing home assistance. For instance, a parent might transfer a $500,000 property into the trust, making them suitable for Medicaid. By counting this property in their taxable estate, they can bequeath it to their offspring tax-free using up only $500,000 of their unified gift and estate tax exemption. By the time the asset is transferred to heirs it might be worth twice that. 


Irrevocable Trusts: A Comprehensive Overview

The world of estate planning and asset protection is intricate, with various instruments designed to serve diverse financial and personal needs. The irrevocable trust stands out among these instruments’ unique features and benefits. Here, we will delve into irrevocable trusts’ nuances, purpose, structure, and implications.


Understanding Trusts: The Basics

At its core, a trust is a legal arrangement where one party, the grantor, transfers assets to another party, the trustee, to manage on behalf of a third party, the beneficiary. Trusts can be classified broadly into two categories: revocable and irrevocable. While the grantor can alter or revoke the former, the latter remains essentially unchangeable once established.


The Distinct Nature of the Irrevocable Trust

As the name suggests, an irrevocable trust cannot be modified or terminated without the beneficiary’s permission. This permanent nature is not just a stringent rule but serves specific, strategic purposes:

  • Asset Protection: Assets held within the trust are generally shielded from creditors and potential legal judgments, providing financial security.
  • Tax Implications: Transferring appreciating assets into an irrevocable trust can minimize estate taxes, as these assets are no longer considered part of the grantor’s taxable estate. But the law counts all gifts, even transfers to an irrevocable trust against the gift and estate tax exclusion amount.
  • Medicaid Considerations: By placing assets into an irrevocable trust, individuals may preserve their eligibility for Medicaid, which could be essential for long-term care planning.


Types of Irrevocable Trusts

There are several variants of irrevocable trusts, each designed to address specific financial objectives:


Life Insurance Trusts (ILITs):

Life Insurance Trusts, often called Irrevocable Life Insurance Trusts (ILITs), serve as dedicated vessels to hold life insurance policies. The primary motivation behind establishing an ILIT is to remove the life insurance policy from the grantor’s taxable estate, ensuring that beneficiaries receive the entirety of the policy’s payout without estate tax reductions.

When a policyholder passes away, the insurance proceeds can be substantial, often pushing the overall value of their estate to an amount that could be subjected to significant estate taxes. However, by placing the policy within an ILIT, these proceeds are no longer directly associated with the grantor’s estate. It’s worth noting that there’s a three-year look-back period: if the grantor dies within three years of transferring their existing policy into the ILIT, the proceeds may still be considered part of the taxable estate.

Beyond estate tax benefits, ILITs also offer a degree of control to policyholders. Through the trust document, they can specify how, when, and under which circumstances the insurance proceeds should be distributed to beneficiaries. This allows for a structured and systematic approach to wealth distribution.


Charitable Trusts:

At the intersection of philanthropy and financial planning lies Charitable Trusts. These trusts are meticulously designed to achieve dual objectives: furthering philanthropic goals and optimizing tax efficiencies for the grantor.

There are two primary types of Charitable Trusts: Charitable Remainder Trusts (CRTs) and Charitable Lead Trusts (CLTs).

  • Charitable Remainder Trusts (CRTs) allow the grantor to place assets into the trust, which then pays a percentage of its value annually to the grantor or other designated beneficiaries. Upon the trust’s termination (often after the grantor’s passing or after a specified number of years), the remaining assets go to the chosen charity. The upfront benefit for the grantor is a charitable income tax deduction based on the estimated present value of the eventual gift to the charity.
  • Charitable Lead Trusts (CLTs) work somewhat inversely. After assets are placed into the trust, a percentage of their value is paid to the designated charity for a specified period. Once this period concludes, the remaining assets are transferred to the grantor’s heirs or other beneficiaries. This setup offers gift tax or estate tax benefits based on the present value of the annuity payments to the charity.

Both trust structures allow the grantor to make significant charitable contributions while realizing tax benefits and ensuring wealth distribution per their wishes.


Bypass Trusts (Credit Shelter Trusts):

Bypass Trusts, more commonly known as Credit Shelter Trusts, are a strategic instrument employed primarily by married couples to maximize their estate tax exemptions. This type of trust capitalizes on the federal estate tax exemption by creating a shelter for assets up to the exemption limit, ensuring they aren’t subjected to estate taxes upon the second spouse’s death.

Here’s how it typically works: Upon the first spouse’s death, assets up to the federal exemption limit are placed into the Bypass Trust. These assets, plus any appreciation, are then free from federal estate taxes, even upon the second spouse’s death. The surviving spouse can often receive income from this trust during his or her lifetime, but the principal remains protected for beneficiaries, such as their children.

Essentially, the Bypass Trust ensures that both spouses fully utilize their federal estate tax exemptions, potentially saving substantial sums for their heirs. As tax laws and exemptions frequently evolve, it’s imperative for couples to regularly review their estate plans and stay abreast of changes that could impact their financial strategies.


Establishing an Irrevocable Trust

The process of setting up an irrevocable trust is methodical and demands meticulous attention:

  1. Goal Definition: Clearly outline the reasons for creating the trust, be it for tax benefits, asset protection, or another objective.
  2. Trustee Selection: The trustee’s role is pivotal. Hence, appointing an individual or institution with proven integrity and competence is crucial.
  3. Trust Document Drafting: This legal document will dictate the terms of the trust. Due to the permanence of irrevocable trusts, engaging with an experienced attorney is recommended.
  4. Asset Transfer: Once assets are transferred to the trust, the grantor relinquishes control, underscoring the trust’s irrevocable nature.


Jurisdictional Variances

It’s imperative to recognize that trust laws can vary significantly by state. Ideally, legal professionals specializing in trust and estate planning should thoroughly research and understand local regulations, tax implications, and legal nuances.

The irrevocable trust is a sophisticated financial tool, offering a blend of asset protection, tax benefits, and long-term planning potential. While it’s not suitable for every individual or circumstance, it can be an invaluable component of a comprehensive estate plan for those with specific financial goals and the willingness to forgo certain controls. As with all legal and financial instruments, thorough consultation and due diligence are essential before proceeding.


Navigating the New IRS Landscape on Irrevocable Trusts

The dynamic realm of estate planning has witnessed yet another significant shift with the introduction of the IRS’s Rev. Rul. 2023-2. This ruling, that specifically impacts the step-up basis for assets held in irrevocable trusts, underpins the evolving complexity of financial planning in today’s changing regulatory environment.

Irrevocable trusts, which have historically been a linchpin for many financial strategies, are designed to offer various benefits ranging from estate tax optimization to qualifying for Medicaid nursing home assistance. However, the recent IRS ruling has modified how assets within these trusts are treated, particularly concerning their step-up in basis. As a refresher, the step-up provides beneficiaries an adjusted basis in the inherited asset that mirrors its fair market value at the time of the grantor’s death, often allowing for significant tax savings when the asset is later sold.

With Rev. Rul. 2023-2, for assets within an irrevocable trust to qualify for this benefit, they must now be included in the grantor’s taxable estate at the time of their passing. This necessitates reevaluating estate planning strategies, as many assets previously placed into such trusts with the anticipation of receiving the step-up benefit may now fall outside its purview unless appropriately accounted for.

However, it’s essential to contextualize this ruling within the broader landscape of estate taxation. The estate tax exclusion thresholds set for 2023 are pegged at $12.92 million and $25.84 million for married couples. Consequently, even with the inclusion of irrevocable trust assets in a grantor’s taxable estate, most estates will remain unaffected by the federal estate tax. Historical data from 2021 fortifies this perspective, as only 42% of estates that filed for estate tax returns were liable for the tax. Thus, while the ruling may initially appear challenging, its impact could be tempered by the existing estate tax structure for many American families.

Yet, the ephemeral nature of tax regulations necessitates caution. The anticipated rollback of the estate tax exemption to its 2017 figure of $5 million (adjusted for inflation) in 2026 is a looming concern. Should this reduction materialize, more estates may grapple with tax implications, warranting further strategic adaptations.

Lastly, it’s worth acknowledging the diverse reasons individuals establish irrevocable trusts. Beyond mere tax benefits, these trusts serve broader objectives. Whether a parent aiming to qualify for Medicaid while ensuring their home transitions smoothly to their children or philanthropists wanting to ensure their legacy benefits their heirs and charitable causes, irrevocable trusts will remain vital tools in the estate planning toolkit.

In closing, while the IRS’s new ruling on irrevocable trusts undeniably introduces fresh intricacies into estate planning, it also reinforces the importance of adaptability and forward-thinking. Individuals and estate planners must remain agile, consistently reassessing their strategies in response to the ever-shifting regulatory tapestry. Irrevocable trusts, despite the complexities introduced by Rev. Rul. 2023-2, continue to offer a blend of advantages, solidifying their position as foundational elements in financial planning.

Interestingly, adoption of the Fair Tax System specified in my book, A Taxing Problem.  The Psychologist’s Prescription for a Just Tax System ( would eliminate any income tax benefits of the irrevocable trust.