When trusts get created the intention is to enforce the trust after it gets created. Change is a guaranteed constant in life.
Circumstances we cannot predict when a trust gets created change.
Can an irrevocable trust get changed?
Many people believe an irrevocable trust cannot get changed or ended.
Irrevocable means: cannot get changed or reversed; final.
It makes sense to think amending an irrevocable trust is not possible.
California Probate Code Section 15404 provides the rules for changing the terms or amending an irrevocable trust.
Effective January 1, 2018, the code states in whole or in part:
A trust may get changed or ended by the written consent of the settlor of the trust and all beneficiaries without court approval of the modification or termination.
What if Beneficiary Does Not Agree?
If any beneficiary does not agree to change or end the trust, upon petition to the court, with the consent of the settlor of the trust and the other beneficiaries whose consent is necessary, the court may allow modification or termination of the trust.
The court will only agree to changes if the interests of the non-consenting beneficiaries do not get substantially impaired.
If the trust provides for the disposition of principal to a class of persons described only as heirs or next of kin of the settlor, or using other words that describe the class of all persons who would take under the rules of intestacy, the court may limit the class of beneficiaries whose consent is necessary to change or end a trust to the beneficiaries who are reasonably likely to take under the circumstances.
Breaking down the probate code, someone can change an irrevocable trust:
(a) When the settlor and all beneficiaries agree in writing. It does not involve the court.
(b) If the creator of the trust has died, and the beneficiaries have a reason that the trust needs to get changed, court approval usually gets granted if a material purpose or reason gets presented showing a trust modification is appropriate and aligns with the purpose of the trust.
(c) For the court to limit the class of beneficiaries.
If there is one constant in life that constant is change! Life guarantees change. When life circumstances change, we may need to change our trust.
California Laws with Trusts
There are frequent changes in California laws and changes in the internal revenue code.
Let’s look at how Tax Cuts and Jobs Act signed into law on December 22, 2017, presents good cause to change an irrevocable trust upon petition to the court.
In 2018 the estate and gift tax exemption is $11.18 Million per individual. In 1976 the exemption was $60,000.
With the new exemption laws, less than one-half of one percent of the United States will ever have an estate tax issue.
The exemption applies to everyone whether they have a trust. It’s a lifetime exemption.
There is a big shift now in what trust attorneys do. The concern is that income tax is high in California. Capital gains taxes are also high.
With the ability to change an irrevocable trust, attorneys focus on changing a trust to avoid estate tax and avoid or reduce income tax for beneficiaries.
Given that estate plans get created with zero visibility into the future, it behooves us to check with the law firm that created the trust and other estate plan documents on an annual basis.
Most of us do not keep current on trust and estate laws or the internal revenue code.
We rely upon our trusted tax and legal professionals to advise us on changes in California laws and changes in the internal revenue code that present good cause for amending an irrevocable trust.
Depending upon the circumstances, changes to an irrevocable trust or termination of the trust can happen without the need to petition to the court.
We may need to petition the court for approval. The court may grant changes to a trust provided the changes make sense and beneficiaries are not substantially impaired by the changes.
Otherwise, the court may limit amending an irrevocable trust.
Always hire a trust and estate plan attorney experienced in probate and trust administration to create estate planning documents designed to meet your specific circumstances and needs.