Can an Irrevocable Trust Be Modified or Terminated?

by Amanda McMullen ; Updated July 27, 2017
State laws governing the modification of irrevocable trusts differ.

When you create a trust to hold your assets, it can be revocable or irrevocable. If you create a revocable trust, you can change the trust's contents, beneficiaries and trustees at any time. However, you may wonder if changing the terms of an irrevocable trust is ever possible. The truth is that irrevocable trusts are difficult, but not impossible, to modify.

About Irrevocable Trusts

An irrevocable trust is an entity created to hold your assets and pass them to beneficiaries when you die. Irrevocable trusts provide significant relief from estate tax when you die because the assets in the trust no longer belong to your estate. Irrevocable trusts also protect your assets from seizure by creditors. However, unlike a revocable trust, you can't typically maintain control of the assets in an irrevocable trust during your lifetime, nor can you easily change the beneficiaries or trustees.

Modifying an Irrevocable Trust

Some states allow grantors to modify or revoke irrevocable trusts in certain circumstances. However, the process may be expensive and time consuming. To modify or revoke an irrevocable trust using this method, you must convince the court that there has been a drastic change in circumstances, such as a tax law alteration or dissolution of a beneficiary charity, that prevents the trust from serving the grantor's original purpose. Some states may also allow you to amend or revoke a trust if you obtain written consent from all beneficiaries.

Decanting

If your trust contract permits decanting, you can modify an irrevocable trust by moving the assets into a new irrevocable trust with different conditions or beneficiaries. If your irrevocable trust doesn't specifically allow decanting, you may still use the method if your state law allows it. If your state law doesn't allow decanting, you may move your trust to a state that permits it.

Considerations

When you are unable to modify or revoke your trust, you may start over with a new trust, depending on the assets contained within the original. For example, if your irrevocable trust contains only a life insurance policy, you could cancel the policy, purchase a new one, and put it in a different trust. You might also create a new irrevocable trust and use it to purchase assets from the original. However, you must typically purchase the assets for their fair market value.

About the Author

Amanda McMullen is a freelancer who has been writing professionally since 2010. She holds a bachelor's degree in mathematics and statistics and a second bachelor's degree in integrated mathematics education.

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