A revocable trust becoming irrevocable - Property transfer and Medicaid questions

[alanryder]

New York. NY. My dad has a revocable trust that due to his dementia has become irrevocable, but he is still living. I am both the sole beneficiary and trustee. Am I allowed to transfer any other property that was given to me in the will into the trust to hopefully avoid probate? There is a regular will, but the correct pour over will wasn't done. At this time am I allowed to re title the property the trust gives to me into my name via a deed? Would there be capital gains tax if I did, or do I have to wait until my dad passes away? If due to incompetence for over 5 years, and the trust technically being irrevocable for that time, would that count as the 5 year look back for Medicaid purposes? Thanks much for any help.

 

[LdiJ]

New York. NY. My dad has a revocable trust that due to his dementia has become irrevocable, but he is still living. I am both the sole beneficiary and trustee. Am I allowed to transfer any other property that was given to me in the will into the trust to hopefully avoid probate? There is a regular will, but the correct pour over will wasn't done. At this time am I allowed to re title the property the trust gives to me into my name via a deed? Would there be capital gains tax if I did, or do I have to wait until my dad passes away? If due to incompetence for over 5 years, and the trust technically being irrevocable for that time, would that count as the 5 year look back for Medicaid purposes? Thanks much for any help.

You absolutely need to consult with a local probate attorney before you do anything at all. You are way over the top regarding the powers that you have currently.

 

[tranquility]

Technically irrevocable is not irrevocable. A trustee of a trust has no power over the grantor's assets outside of the trust. An attorney is way more than called for at this and previous junctures.

 

[FlyingRon]

The first question is whether the trust is really irrevocable. But by and large that's immaterial.
A trustee can do what the trust documents authorizes him to do. All irrevocable does is mean that the trust document itself can not be changed. It doesn't mean the trust can't disburse (or even acquire for that matter) things if that is provided for.

A trust has no BEARING AT ALL on the will or things not in the trust as pointed out.
A will has no bearing until the estate is probated (which requires the testator to be DEAD not just incapacitated).

A lawyer, as previously suggested, is going to be required here.