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Katya Sverdlov Blog

Tuesday, April 18, 2017

Is an Irrevocable Trust really that Irrevocable?

The word “Irrevocable” usually implies no ability to change. Most people believe that the Trustee is required to adhere to the wishes of the Trust’s creator, even though the times and circumstances have changed. Nonetheless, that is no longer true in the case of New York State.

There are two circumstances where an Irrevocable Trust may be changed or revoked.

The first circumstance exists when the Grantor of the Trust is still alive, wants to make a change and ALL the beneficiaries of the Trust agree with the proposed change. In this case, an amendment of the Trust or a revocation can be done – as long as everyone signs. Of course, this is often an impractical solution, as often beneficiaries either do not agree to a change (who wants to lose money that is coming to them?) or are incapable of agreement (because at least one of them is a minor). 

The second scenario is called “decanting”. It is most often used when the Grantor of the Trust is no longer alive. Unless specifically forbidden to do so by the document, the Trustee may “decant” the Trust into another one. The new Trust may have less beneficiaries than the original one (but not more), may change tax provisions, and may give different powers to the Trustee. Most beneficially, no consent from the beneficiaries is needed!

And even if these two methods are unavailable to you, a Grantor or a Trustee may petition a court to modify the terms of the trust if it is in the best interests of the beneficiaries. While this process does require court approval, and the court could always disagree and keep the trust in its current form, if a strong valid point can be proven (Example: a trust that was meant to give income to the Grantor for life, and all remaining money to a charity upon the grantor’s death is almost depleted because the Grantor is living too long) the court may allow the trust to be modified.

As you can see, an Irrevocable Trust does not always remain one!


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