Revocation and Modification of Irrevocable Trusts

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Revocation and Modification of Irrevocable Trusts

An irrevocable trust is a trust that cannot be terminated by the settlor, or person establishing the trust, once it is created. 

How Is an Irrevocable Trust Created?

In general, all trusts are irrevocable, or cannot be terminated, unless the trust agreement specifies otherwise. In states where the revocable trust is the default trust, an irrevocable trust can be created by specific language in the trust agreement. 

Can an Irrevocable Trust Ever Be Revoked?

States may have specific statutes dealing with the revocability of irrevocable trusts. In general, however, a trust cannot be revoked by the person establishing the trust without the consent of all the beneficiaries, or persons for whom the trust was created. The exception to this is when the person establishing the trust is the sole, or only, beneficiary. In this instance, the person establishing the trust can revoke the trust without informing the trustee, or person managing the trust.

A trust can also be revoked if the person establishing the trust can prove that at the time of the trusts' creation she was not of mental soundness or entered the trust as a result of mistake, fraud, duress, or undue influence

Can an Irrevocable Trust Be Modified? 

The same principles that apply to revocation apply to modification. In general, however, any modification must protect the interests of the parties benefitting from the trust. In addition, many states have statutes expressly dealing with modifications, and modifications may not go against the original intent of the person establishing the trust. Although courts are given latitude in modification, they are also bound by not deviating from the original intent of the person establishing the trust unless doing so would be impossible or illegal.

Do I Need a Trust Attorney?

The complexities of trusts suggest that seeking out a trust attorney would help to navigate the complicated nuances that are associated with trust creation.

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Last Modified: 09-12-2014 03:51 PM PDT

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