What Are the Rules for Changing a Living Trust After a Spouse Dies?

By Teo Spengler

A living trust is a legal vehicle you can use to transfer property upon your death that avoids probate. If you and your spouse create a living trust together, you need your spouse's permission to change trust terms. After your spouse dies, you can only change the part of the trust that relates to your property.

Living Trust Basics

A living trust is a legal instrument that is easier to understand if you think of it as a water glass. Funding a trust is like adding water to the glass. You can sip water from the glass during your lifetime. Upon your death, whatever water remains in the glass is transferred to the people you name as beneficiaries.

Creating a Living Trust

You create a living trust by completing a legal document. You can ask your attorney to prepare a living trust for you or do it yourself using forms available from reliable online legal service providers. In the document, you must name a trustee to manage the assets and a beneficiary who may use the assets. Most people name themselves as the initial beneficiary. You also name successor beneficiaries who will benefit from the trust when you die. You fund the trust by transferring assets into it.

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Changing a Living Trust

One of the great advantages of a living trust is its flexibility. You can revoke or amend a living trust throughout your lifetime. In order to change a living trust, you either write and execute an amendment that is attached to the document or rewrite the entire document with whatever changes you wish, termed a restatement. A living trust becomes irrevocable after the maker's death.

A-B Trust

If you create a living trust with a spouse, commonly termed an A-B trust, you can transfer marital property or community property into the trust. In addition, each of you can transfer separate property that belonged to either spouse before the marriage. When the first spouse dies, the trust is split into two trusts, with Trust A containing the property belonging to you and Trust B containing the property belonging to your deceased spouse. You are free to change the terms of Trust A or revoke it entirely, but Trust B is irrevocable and cannot be altered.

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How to Prepare an Amendment to a Revocable Trust
 

References

Related articles

How to Amend a Revocable Trust

One of the advantages of creating a revocable trust is your ability to amend it. Amendments are commonly made to add a beneficiary, such as a new grandchild, but can be used for virtually any trust purpose. Amending a trust typically requires a document --an amendment -- separate from the original trust document. Trusts are often executed with certain legal formalities. Writing on the trust document itself, even if you sign or initial the change, may not be effective and could cause confusion on the future. When in doubt, seek professional help.

Does a Living Trust Change When a Person Remarries?

A living trust is created by a grantor when he transfers property to a trustee to hold and manage for the benefit of specific beneficiaries. When a person creates a living trust, it is normally a part of a broader estate plan. Oftentimes, the creator names himself as beneficiary and initial trustee, but when he passes away, the trust then conveys his property to other designated beneficiaries instead of by will. If the creator of the trust remarries, the terms of the trust generally do not change automatically. However, many times the trust can be altered to include a new spouse as a beneficiary to the trust.

How Do I Change a Last Will & Testament?

You might decide to change your will for several reasons, including changes in the laws governing your will and changes in your family, such as a marriage, birth or divorce. Most states recognize at least two different ways to change a will: by using a codicil or by making a new will, according to FindLaw. To prevent confusion, it is best to consult an attorney whenever you change your last will and testament.

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