Over a period of time, a person will experience plenty of changes. There will be changes in tax laws and changes in their relationships with other people. In some cases, these changes lead to the need for an adjustment to one's trust account. If you'd like to swap out the trustee listed in your irrevocable trust, this is a bit more complicated than if you had a revocable trust. Fortunately, you can do this if you follow the right process.
Revocable Trust Vs. Irrevocable Trust
When it comes to estate planning, there are two options for trusts: revocable trust or irrevocable. The revocable trust is sometimes referred to as a living trust, mostly because the trust can be changed at any time. You can modify the terms within the trust using a trust amendment or you can revoke the trust altogether. While the benefits of a revocable trust are great, there are also a few downsides. All assets listed in the trust are consider your personal assets and are subject to any lawsuits should you get sued. The assets will also count against you if you want to file for Medicaid. When you pass away, the trust is subject to state and federal taxes, as well as an inheritance tax.
An irrevocable trust may contain the same information as the revocable trust, but it generally does not allow for any future changes. Additionally, the property listed in the trust now belongs to the trust, and not you personally, which protects the assets in the event of a lawsuit. An irrevocable trust also provides estate tax reductions. If you'd like to change the trustee on your irrevocable trust, you'll need to work a little harder than you would if you had a revocable trust.
Review the Trust
Each trust should list the procedure for replacing a trustee. If your irrevocable trust didn't spell this out, take a look at your state's laws on the matter instead.
Talk to All Involved Parties
With an irrevocable trust, you must get written consent from all involved parties to switch the trustee. That means having the trustmaker (the person who created the trust), the current trustee and all listed beneficiaries sign an amendment to remove the trustee and replace him or her with a new one. The new trustee must also consent to their new appointment.
Contact the Trust Protector
In many cases, a third-party trust protector is used to ensure the trustee is adequately handling the trust account. He or she may also act as a go-between for the trustee and the benefactors. If you have a trust protector and they have specifically been given the power to replace a trustee (this must be spelled out within the trust), then you can have the trust protector make the change.
Petition the Court
There are two instances when it becomes necessary to involve the courts. First, if the trustmaker or one of the beneficiaries does not consent to the trustee change, the trustmaker can petition the court for a modification. If a judge agrees, the trustee can be changed. Second, if the trustmaker dies, and the beneficiaries want to change the trustee, they must also petition the court and get a judge's approval to alter the trust.
Decant the Trust
The final option to replace the current trustee is to decant the trust. Decanting means moving the assets from the current existing trust into a new trust. You'll be able to designate a new trustee and create new terms.
Items you will need
- Original irrevocable trust document
- Consider appointing a professional trust company as trustee to help eliminate some of the problems inherent with appointing individuals as trustee.
- Be prepared to go to court if the beneficiaries will not consent to a trustee change or if there is a disagreement about who should be appointed.
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