In California, all trusts are revocable unless the settlor -- trust creator -- states otherwise. Making the trust irrevocable offers greater asset protection in return for making the trust harder for the settlor to change. All valid non-charitable trusts in California must have beneficiaries. If you want to change beneficiaries on your trust -- add a new grandchild to the beneficiaries, for instance -- the California Probate Code gives you ways to do so, even if the trust is irrevocable.
Read over the trust agreement. It's possible to write grounds for amendment into an irrevocable trust. If this trust includes such a provision, and it applies in your current circumstances, just follow the procedure.
Look for errors in the trust document or changes in the beneficiaries' circumstance that might convince a court to reform the trust. If you discover that whomever typed up your declaration of trust omitted a beneficiary, for example, a court might agree that's a valid reason for changing even an irrevocable trust.
Talk to the settlor and the beneficiaries if you can't find other grounds for a change. If everyone agrees that the trust needs to be modified -- the settlor wants to add a new grandchild as a beneficiary, for example -- then you can do it without any problems.
File a petition in court if you don't have unanimous agreement. If you and a majority of the beneficiaries support the change, a judge will consider it, provided the change doesn't cause a substantial loss to the beneficiaries who oppose it. If you oppose a change that your beneficiaries unanimously support, they might be able to persuade a court to make the change despite your opposition.
If one of the beneficiaries is a minor, mentally incompetent or an unborn child, the court may appoint a guardian ad litem to represent his interests. If the trust documents identify someone unborn as a beneficiary -- and therefore possibly entitled to representation -- "the presumption of fertility is rebuttable." Meaning someone in the case can challenge the assumption that the individual will ever be born. If a trust loosely defines the beneficiaries as the settlor's "heirs" or "next of kin" a judge can limit the number who must be consulted about a change to the heirs most likely to inherit.
- Justia: California Probate Code
- Superior Court of California, County of Santa Clara. "Can a Trust Be Canceled or Amended?" Accessed July 31, 2020.
- Fidelity Charitable. "Charitable Remainder Trusts." Accessed July 31, 2020.
- Thompson Coburn. "Spinning Straw Into Gold: Modifying Irrevocable Trusts." Accessed July 31, 2020.
- Northern Trust. "Trust Protectors," Pages 1-3. Accessed July 31, 2020.
- Halliday Financial. "Trust Connection," Page 1. Accessed July 31, 2020.
- Karen S. Gerstner & Associates, P.C. "Basics - Irrevocable Life Insurance Trusts," Page 6. Accessed July 31, 2020.
- If one of the beneficiaries is a minor, mentally incompetent or an unborn child, the court may appoint a guardian ad litem to represent his interests.
- If a trust loosely defines the beneficiaries as the settlor's "heirs" or "next of kin" a judge can limit the number who must be consulted about a change to the heirs most likely to inherit.
A graduate of Oberlin College, Fraser Sherman began writing in 1981. Since then he's researched and written newspaper and magazine stories on city government, court cases, business, real estate and finance, the uses of new technologies and film history. Sherman has worked for more than a decade as a newspaper reporter, and his magazine articles have been published in "Newsweek," "Air & Space," "Backpacker" and "Boys' Life." Sherman is also the author of three film reference books, with a fourth currently under way.