The Revocability or Irrevocability of a Trust
Over views what constitutes a trust being revocable and/or becoming irrevocable. Reminds individuals that unforseen illness or disaster could create circumstances that require revocation of a trust.
It is this final fact that is often the beginning of an important problem. The settlor who creates the trust for his or her benefit and for the benefit of others, often creates the trust in such a way that he/she gets the greatest amount of benefit and retains the greatest possible control over the trust that. The settlor also wishes to retain the ability to dissolve the trust in case one of the other beneficiaries presents a legal problem (or for that matter any other problem), or the trustee proves ineffective or problematic in some way.
The problem is when and under what circumstances is a trust revocable, and when or under what circumstances can a trust become irrevocable. In most states a trust is revocable only if the writing that creates the trust says that it is revocable. In other states the position is reversed; a trust is irrevocable only if the writing that creates the trust says that it is irrevocable. But, let’s assume that your attorney knows what state he or she is in greater than 99.
9999% of the time and that these two rules are not really a problem very often.
Remember that a trust is created to benefit a person or group of persons known as the beneficiary or beneficiaries and that the settlor (creator of the trust) can be a member of that group. However, the settlor can’t be the only member or, in other words, the sole beneficiary. This is not only true in name, but in fact as well. In order for someone to be a beneficiary they must receive some benefit. Courts have traditionally held that the benefit required to make a person or group a beneficiary can be quite small, but nonetheless must be there. This means that just because someone is named the beneficiary of a trust, the court will not count them as a beneficiary unless they actually are getting some benefit. If the settlor is the only beneficiary, then there is no trust at all, but rather an attempt to avoid paying taxes. Here the trust could be called revocable, but it would be more accurate to say that it never existed at all, for that is how it will be treated in law.
In a case where a trust is irrevocable, meaning that it cannot be changed at the whim of the settlor, then the consent of all the beneficiaries to terminate the trust is required. Sometimes, there are beneficiaries who are unwilling to give their consent, but more often there are beneficiaries who have not yet been born or who have not reached the legal age where their consent can be given. There are procedural devices (such as the appointment of guardians ad litum, who represent infants or unborn who are beneficiaries) that each state has created to take care of these sorts of problems and you should consult your attorney to find out how your state’s policies work if you are setting up an irrevocable trust.
Remember, the main reason that settlers or beneficiaries have to try to alter an irrevocable trust is that financial circumstances change and money is needed. For example, the settlor requires extensive medical care and it would be better for them to dissolve the trust to pay for it. This could also be true of one or more of the beneficiaries. The difficulty in setting up a trust is that it is hard to anticipate every possible change in circumstances for which trust assets might be needed. A good estate planning attorney is someone who is able to anticipate disastrous things and is able to discuss and plan for them with the settlor.
Another reason that a trust can become irrevocable and remain irrevocable, despite the fact that all the beneficiaries agree it should be revoked, is that a trust is seen as having a “material purpose.” The material purpose of a trust is the reason for which it was created and what it was intended to do. For example, sometimes a trust is designed in such a way as to keep a young beneficiary from getting all the assets left to them in trust, until they “come of age,” or turn 25 years old. If the beneficiary tries to get the assets of the trust upon turning 18, the trustee and the court are likely to decline, because the material purpose of the trust was to give the assets to the beneficiary when he/she was old enough to handle them in a mature fashion.
Again, it is important to talk to your attorney when forming a trust to determine how to best plan for the future, with respect to answering hard questions about potential future illnesses or other disasters that might befall your beneficiaries or yourself and what can be done with the assets placed in trust should events unfold in other unforeseen ways. The more explicit you are about these possible problems, the easier it will be to revoke the trust even if you chose to make the trust irrevocable.
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ABOUT THE AUTHOR
About Ronald E. Hudkins; Ronald Hudkins is a retired military police enlisted member that was assigned as a staff researcher. He has coordinated with military and criminal investigators, set on court marshals and worked closely with the Staff Judge Advocate Generals Office (JAG). He has a keen sense of legal matters- their interpretation, initiatives and guidelines. For imperative financial planning needs he suggests his book “Asset Protection and Estate Planning for All Ages.” Additionally, he offers a Free Newsletter at his web site: http://www.AssetProtectNow.com .