How to Revoke an Irrevocable Trust

by Beverly Bird

    By definition, an irrevocable trust is supposed to be unbreakable and unchangeable. In exchange for giving up control and ownership of your assets, you receive valuable tax breaks and considerable protection against creditors and lawsuits. Unlike with a revocable trust, however, you can't unilaterally undo or change your irrevocable trust if you later change your mind about its terms. You may have some options, however, depending on the laws in your particular state.

    The easiest way to undo an irrevocable trust is if you, your trustee, and all your beneficiaries agree that it's necessary. For example, you might suffer a serious and unforeseen financial setback, and the assets in your trust are all that stand between you and poverty. If your loved ones – those named as the trust's beneficiaries – agree that ownership of the assets should return to you, and if your trustee concurs, your trust can be revoked by unanimous written consent in some states.

    Even if all your beneficiaries don't agree to revoke the trust, you may not be out of luck if you can prove that maintaining it is no longer in the best interests of its assets or your beneficiaries. For example, you might have written the trust documents to pass a sizeable inheritance to an in-law who's no longer part of the family due to an ugly divorce. In all likelihood, you could not secure the consent of this beneficiary to revoke your trust and eliminate his bequest. However, you, the trustee, or any other beneficiary who is harmed by the existing terms can file a petition with the court, asking it to intervene. In some states, the court has the power to override the terms of your trust for good cause and for the best interests of your estate when the unforeseeable occurs.

    You might also be unable to get the consent of all your beneficiaries if any of them are minors at the time you want to revoke your trust. In some states, such as New York, minors can't legally make such a decision and a parent cannot do it for them. In this case, your trust may be unchangeable unless you petition the court and can prove that revoking it is in the minors' best interests or would not disadvantage them.

    In some cases and in some states, your trustee and your beneficiaries can revoke your trust even after your death. This usually involves filing a petition, just as if all your beneficiaries did not consent to a change during your lifetime. A petition for a post-death revocation may be more successful when all beneficiaries and the trustee agree that it's necessary. In some states, such as Florida, the beneficiaries and trustee can make such a change without court involvement if they're all in agreement.

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    About the Author

    Beverly Bird has been writing professionally since 1983. She is the author of several novels including the bestselling "Comes the Rain" and "With Every Breath." Bird also has extensive experience as a paralegal, primarily in the areas of divorce and family law, bankruptcy and estate law. She covers many legal topics in her articles.

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