Can A Trust Be Modified After The Trust Maker Has Died?
In some cases, a trust can be modified after the trust maker has died. Generally speaking, estate planning attorneys will tell you that even a trust that is named a revocable trust becomes irrevocable at the instant of the trustor’s death. However, that’s not always the case. If you would like your revocable trust to be cheaply amended even after your death, then you should speak with our office about including provisions that would allow for this. If you do not make such plans in advance, we can often accomplish the task of amending the trust after you are gone, but the cost will be terrifically higher.
Unfortunately, some people are compelled to incur the great expense of amending a trust that appears to be irrevocable in order to best serve the needs of the beneficiaries. For example, if you have designated your daughter as the beneficiary of the trust and she has since suffered a terrible car accident and become incapacitated, then it’s very likely that your plan is going to have negative side effects that you never dreamed would happen. When something like this happens, you will probably need us to bring a legal action to amend that trust and fund your daughter’s inheritance into a special needs trust. Since such events do happen, many of our trusts will include language allowing your trustee to directly fund an inheritance into a special needs trust in order to eliminate the cost of asking the court for such a change after you have passed away.
If your money is going to be given to natural persons as opposed to corporations, charities, or churches, then it would be wise to use our drafting services from the beginning, as this will make for a cheaper, faster, and easier process that accounts for disasters that may occur in the future.
When Can I Terminate My Trust?
Whether or not a trust can be terminated will rely heavily upon the exact language of the trust. Most trusts can be liquidated or dissolved during your lifetime and after you have passed away. With that said, some trusts are very difficult to liquidate or dissolve, and the exact language and terms of the trust will dictate the degree of difficulty or ease of dissolving the trust. For example, if I have a revocable living trust in which I keep the bank account that holds my day-to-day operating money and automobile, that revocable living trust can be easily liquidated or amended at will so long as I am sound of mind. However, not all trusts are handled so easily, and frankly, not all attorneys who draft trusts consider the fact that many trusts will need to be amended or even eliminated at some point in the future. If that eventuality is not considered at the time of drafting, the expense of fixing the problem will be much greater than the cost of having hired competent counsel from the beginning.
If I Modify Or Terminate My Trust, How Will It Impact Beneficiaries Or The Probate Court?
The likelihood of problems arising (as well as the severity of those problems) will be greatly increased if you do not use highly competent legal counsel to assist you in the modification or termination of a trust. Often, the proverbial ounce of prevention that is worth a pound of cure is created by a competent attorney who is knowledgeable in the specific area of law that applies to your case.
In an effort to minimize or eliminate contest in the future, you might consider asking your physician for a letter evidencing your mental competence. If your doctor provides a written letter which states that you are competent, then that will create a reasonable likelihood—albeit not a certainty—that a future court will agree that your trust amendment of revocation is effective.
In addition, you should seriously consider creating a video at the time of the signing of your trust revocation or amendment. In that video, you should identify yourself and what you are doing, give your reasons for what you are doing, and provide answers to questions that would allow a reasonable judge to determine that you were in fact mentally competent, aware of what you were doing, and had the actual intent of amending or revoking your trust. Keep in mind that the law does not require you to make such a video, but it can be very helpful if you think there is a chance of a contest down the road.
For more information on Modifying A Trust After Trustor’s Death, a free initial consultation is your next best step. Get the information and legal answers you are seeking by calling (405) 754-4166 today.
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