A testamentary trust is established either by a will when the maker of the will dies or by a living trust when the maker of the trust dies. In both cases, the trust becomes irrevocable; however, Ohio law gives the probate court power to terminate a testamentary trust if, upon petitioned consent of all the beneficiaries, it concludes that continuance of the trust is not necessary to achieve any material purpose. The court may even terminate the trust if one beneficiary does not give consent, as long as the interest of that beneficiary is adequately protected.
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Obtain a copy of the testamentary trust and review its provisions, giving special attention to the provision regarding distribution of the trust assets. Determine whether a termination of the trust will conflict with any material provision regarding distribution of assets. For example, if the maker of the trust included a "spendthrift provision" to prevent one or more of the beneficiaries from dissipating the trust assets, the court may find the trust still has a material purpose and may decline to terminate it.
Discuss your desire and reasons for terminating the testamentary trust with all the beneficiaries of the trust, with the purpose of having all beneficiaries agree to its termination. At the same time, also discuss with the beneficiaries how the trust assets will be distributed, with the goal of making a binding agreement for distribution that the court will approve.
Retain an Ohio probate attorney to assist you with preparing a petition, to be filed with the probate court, requesting termination of the testamentary trust. Provide the attorney with the information from your discussions with the other beneficiaries regarding whether they agree to terminate the trust and, if so, how the assets should be distributed. For any beneficiary not in agreement, discuss with your attorney what can be proposed to adequately protect the beneficiary's interest in the trust.
Work with your attorney and the other beneficiaries to prepare and finalize the petition to terminate the trust. Have your attorney file the petition with the probate court.
Attend the hearing the court sets for your petition.