May 19, 2019
A trust can be revocable or irrevocable, says nj.com’s article, “Can an irrevocable trust be revoked?”
A revocable trust is a living trust that’s created with a written agreement between the person creating the trust (also called the grantor or settlor) and the trustee. That’s the person who will manage the assets in the trust. The person who creates the trust, can also name herself as the trustee for her lifetime, and the trust agreement may say that the grantor can revoke or dissolve the trust. That’s why it’s called a revocable trust.
However, with an irrevocable trust, the grantor doesn’t reserve the right to revoke the trust. In effect, once the assets of an irrevocable trust are re-titled and placed in the trust, they belong to the trust beneficiaries, not the grantor. Nonetheless, an irrevocable trust can still be revoked in some states. The grantor may be able to terminate an irrevocable trust, by following the state laws on dissolution. The laws of each state vary in this area. For example, Arizona has adopted an Arizona Trust Code (“ATC”), which stipulates that an irrevocable trust can be terminated by consent of the trustee and the beneficiaries.
In The Grand Canyon state, an irrevocable trust may be terminated by a court, provided that the termination isn’t inconsistent with a material purpose of the trust. The court can also terminate the trust if continuance of the trust is not necessary to carry out the Grantor’s purposes. A basis for a petition to the court could be that the trust operation is uneconomic, or there are unanticipated circumstances that impede the ability of the trust to carry out the Grantor’s intent. The court may grant the petition, even if all of the beneficiaries are not represented, as long as it appears that the unrepresented parties’ interests are protected by the proposed changes.
In addition, the ATC provides that a Trustee can, upon notice to all “qualified” beneficiaries, terminate an irrevocable trust with a value of $100,000.00 or less, provided the assets are distributed in a manner consistent with the purposes of the trust. Also, the Trustee or another party can petition the court to distribute the assets of an irrevocable trust in a similar manner where the assets in the trust are not sufficient to allow the trust to continue in operation. A reminder is in order: Married persons who have revocable living trusts are reminded, on the death of the first spouse, that the interest of the deceased spouse becomes “irrevocable” under the vast majority of trusts. In other words, after the first spouse dies, the ATC will require notices to children and grandchildren. It should be noted that under the ATC there are some types of notices and disclosures which may not be overridden by the trust instrument. If the issue of notice to children or grandchildren is a concern, then one should carefully review the trust’s notice provisions with counsel.
Please contact Elisabeth Pickle Law in Scottsdale, Arizona, if you have questions about revocable and irrevocable trusts.
Reference: nj.com (March 25, 2019) “Can an irrevocable trust be revoked?”
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