How to Break an Irrevocable Trust

By David Carnes

Two types of trusts are possible: a revocable trust and an irrevocable trust. Although the grantor can unilaterally revoke a revocable trust, even a revocable trust becomes irrevocable when the grantor dies. The assets of an irrevocable trust belong to the trust beneficiaries, not the grantor. Even an irrevocable trust can be revoked under certain circumstances, although it is almost impossible for a creditor of the grantor or a beneficiary to revoke it. Although the trust laws of the various states differ on the grounds and procedures for revocation, they are all based on similar principles.

Two types of trusts are possible: a revocable trust and an irrevocable trust. Although the grantor can unilaterally revoke a revocable trust, even a revocable trust becomes irrevocable when the grantor dies. The assets of an irrevocable trust belong to the trust beneficiaries, not the grantor. Even an irrevocable trust can be revoked under certain circumstances, although it is almost impossible for a creditor of the grantor or a beneficiary to revoke it. Although the trust laws of the various states differ on the grounds and procedures for revocation, they are all based on similar principles.

Step 1

Check the trust deed for instructions on how to dissolve the trust. Even though the trust is irrevocable, the deed may still contain instructions on dissolution as long as the trust grantor lacks the power to unilaterally revoke the trust. The trust deed may, for example, allow the trustee to unilaterally dissolve the trust and return its assets to the grantor if the trustee determines that the purpose of the trust can no longer be achieved.

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Step 2

Obtain the written consent of all trust beneficiaries to dissolve the trust. In some states, this is all that is necessary to dissolve the trust, because the beneficiaries are considered the ultimate owners of the trust assets. Some states require the trustee to add his consent to the consent of the beneficiaries. Still other states require a court order in addition to consent.

Step 3

Create a new trust with terms you desire. Have the trustee transfer assets from the old trust into the new trust, if the trust deed grants the trustee unfettered authority over the management of trust assets. You can create the new trust as a revocable trust and then revoke it as soon as the assets of the old trust are transferred to it.

Step 4

Petition a court for an order dissolving the trust. To obtain a court order, you must provide a legal justification for revocation. One such justification is the mental incompetence of the trust grantor at the time of the creation of the trust. Another justification may arise if the purpose of the trust can no longer be achieved: if a charity is the sole beneficiary, for example, and the charity ceases to exist, or if the sole trust beneficiary is dead. A court order will legally obligate the trustee to distribute trust assets as the court directs.

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Removing a Successor Trustee

References

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How to Terminate Blind Trusts

A blind trust is a special type of trust where the beneficiaries are unaware of the trust's assets and a designated trustee has full authority to manage the trust, including the purchase, sale and exchange of its assets. Politicians and corporate officers often set up blind trusts to avoid conflicts of interest and public scrutiny. In some states, it is legal for a lottery winner to set up a blind trust so that he can anonymously claim his winnings. A trust creator, called the settlor, can set up his blind trust as either a revocable or irrevocable trust. If the blind trust is set up as a revocable trust, the settlor can terminate the trust by following the revocation procedure set forth in either the trust agreement or state statutes. While revoking an irrevocable trust is not always impossible, the process is difficult as it usually requires court approval and consent of all the trust beneficiaries. Common reasons a settlor may want to terminate his blind trust include a change in financial circumstances, unhappiness with the trust’s beneficiaries or desire to shelter trust assets from tax authorities.

Can the Powers of the Successor Trustee Be Revoked?

A successor trustee is a trustee who takes over management of a trust after the original trustee leaves office. He may be a party named in the trust deed, consented to by the trust grantor or beneficiaries, or appointed by a court. State laws provide several ways in which a successor trustee's powers can be revoked and the trustee removed from the position.

How Does a Living Trust Protect Assets?

Creating a trust to holds assets can help the grantor while he is alive and continue to serve him after his death. A living trust is created during the grantor's lifetime. It transfers title (ownership) of the grantor's property into the trust to be managed by a trustee for the benefit of a designated beneficiary. There are different types of living trusts and each can protect assets in a different way -- or not at all.

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