There are many reasons for amending a trust. Circumstances may have changed and the distribution to beneficiaries is no longer appropriate, or even ill-advised. You may even find the trust contains errors that you didn’t spot when the documents were originally created. Although an irrevocable trust, by legal definition, cannot be amended, there are circumstances that do allow changes as well as legal methods that can change how the trust -- or a new one -- earns and distributes its income. Although many rules apply generally, state law governs the creation and amendment of trusts. It's best to consult an experienced estate-law attorney or financial adviser to ensure the changes to your trust comply with your state laws.
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Contact your beneficiaries and your trustee. Under the laws of your state, you may be able to amend a trust with the consent of the trustee and all beneficiaries of the trust. This would require written agreements from everyone involved. In some states, such as California, modification under these circumstances does not require court approval.
Draw up a second trust, if this course of action is better suited to your desired outcome than simply amending the old trust with the consent of all parties. This is known as a "decanting" trust, in which your trustee distributes assets from the old trust into the new one that contains revised goals and instructions. The second trust may contain a new arrangement of beneficiaries that will be subject to state law. There will also be tax consequences for any assets sold or transferred into the new trust.
Sell interest in a business or property out of the first trust to a new trust, which then benefits from all the gain in value of the business or property. Your trustee must have discretionary power to carry out this step. The first trust retains its irrevocable terms, but the second trust becomes the vehicle for distributing the business share and the growth in its value among its named beneficiaries.
Petition the court to allow an amendment to the original trust, if you can show that a "scrivener's error" occurred when the trust was originally set down, or that you did not understand the terms of the trust when you signed it. You do not need direct consent of the beneficiaries to take this step, but the beneficiaries do have the right to raise an objection to the amendment. If the beneficiaries do not agree to the amendment, the modification must be reviewed and approved by the court.
Tips & Warnings
- If your original trust contains a life insurance policy, you may shift the policy to a second trust, while creating terms that would re-distribute the policy’s death benefit among your beneficiaries. This can be useful when financial circumstances of your beneficiaries change, and the original instructions on the distribution of the death benefit no longer suit the new circumstances.
- The original trust may have language allowing the trustee to amend the terms of an irrevocable trust. If this is the case, then the amendments may not have to pass scrutiny by the courts.
- You must follow the laws of your state when setting up a new trust. Your beneficiaries may be able to sue you, the trust and the new beneficiaries if their interests as defined in the first trust are affected. If, however, no rights are affected, then the new trust can usually be set up without consent of the first beneficiaries.
References & Resources
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