How to Amend a Trust to Reinstate Prior Provisions

By John Cromwell

The steps for trust modification are generally the same regardless of whether you are creating new terms for the trust or reinstating prior provisions. The process of modifying a trust hinges on the type of trust it is and who wants to amend the terms. Depending on the circumstances, the creator of the trust, parties to the trust, or a local court can reinstate the prior provisions. The laws regarding a trust vary based on the state where the trust is located, although 23 states have adopted the Uniform Trust Code. If you wish to modify a trust, consider reviewing your state’s laws or consulting with an attorney.

Revocable Trust

A revocable trust allows the original creator of a trust to modify its terms unilaterally. Generally, the amendment is required to be in writing and signed by the creator of the trust in the presence of witnesses. The amendment might also need to be notarized. The amendment should reference the section in the original trust that gives the creator the right to modify the trust. The document should also specifically identify which sections of the trust are being modified and the prior provisions that are to be reinstated.

Beneficiary and Creator Agreement

In some states, a prior provision can be re-adopted if the creator of the trust and all of the beneficiaries agree to the revision. The creator's agreement can be obtained several ways. The creator herself could agree. Sometimes the creator may grant someone power of attorney to act on her behalf with regard to the trust. The agent may consent on the creator's behalf, but only if the power of attorney document explicitly grants the agent the ability to agree to a modification. If the creator of the trust has a conservator or guardian, that agent may agree to any changes in the trust so long as an appropriate local court also approves the modification.

Protect your loved ones. Start My Estate Plan

Beneficiary Agreement

In some states, prior trust provisions can be reinstated if all of the trust’s beneficiaries agree. The beneficiaries must petition the appropriate court for approval to modify the trust. The trust can be modified only if the court finds that the proposed reinstatements would not be inconsistent with the material purpose of the trust. If only some of the beneficiaries want to reinstate prior provisions, some states still allow their courts to modify the trust. However, the reinstatement must still comply with the trust’s purpose and the court must find that the interests of the disagreeing beneficiaries are protected.

Judicial Decree

In some states, a judge may reinstate prior provisions of the trust for several reasons. If the circumstances surrounding the trust change or the trust as currently instituted cannot be administered, a court may modify the trust. If the trust is too costly to administer as currently defined, the court may reinstate prior provisions that decrease the expense.

Protect your loved ones. Start My Estate Plan
Amending an Irrevocable Trust Agreement & Uniform Trust Code

References

Related articles

How to Terminate an Irrevocable Trust

With a trust, you transfer assets to a legal entity set up to shelter your estate from the probate process. A trust allows you to control who will inherit your property after your death and give instructions to a trustee on how to manage that property. Although an irrevocable trust, in theory, cannot be changed or cancelled, there are ways to close down the trust and, if you wish, transfer assets to a new one. If the trust no longer serves the purpose for which it was set up, you may revoke it or draw up amendments that substantially change its terms. In most cases, this process will be subject to review by the courts to ensure that the beneficiaries retain the rights they were granted in the original trust.

How to Fire a Trustee

A trustee is powerful -- he must manage trust property and distribute trust assets to trust beneficiaries in accordance with the terms of the trust. Therefore, knowing how to fire a trustee if and when he abuses his position is vital. Generally, the power to fire a trustee depends on the terms of the trust, state law and the wishes of the trust's beneficiaries and grantor -- that is, the person who created the trust.

Irrevocable Family Trust Laws in Massachusetts

An irrevocable family trust can be effective estate planning tool. When an individual establishes this type of trust, he appoints an individual, known as a trustee, to oversee the administration of the trust. In Massachusetts, specific rules apply to the trustee. State law also sets forth the limited circumstances for the modification or termination of the trust. Understanding the state laws that apply to irrevocable family trusts will help ensure the proper distribution of property held in the trust.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help.

Related articles

Does an Irrevocable Trust Automatically Terminate Upon a Certain Date?

An irrevocable trust is an estate planning tool that the grantor can use for a variety of reasons, including minimizing ...

Amending a Florida Trust

A trust is an instrument that allows one party, known as the settlor, to contribute assets to the trust and to name ...

Removing a Successor Trustee

A successor trustee is a person or entity who administers a trust after its original trustee dies or is incapacitated. ...

North Carolina Law on Irrevocable Living Trusts

In North Carolina, irrevocable living trusts can be established during a person's lifetime, often for estate planning ...

Browse by category
Ready to Begin? GET STARTED