When a trust is created the intention is to enforce it after its created. Ca Probate Code 15404 allows an irrevocable trust to be changed. The laws understand that circumstances we cannot predict change after the document is created.
Can an irrevocable trust be Modified?
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.
In the video above, Trust attorney, Scott Carter, explains:
“If circumstances change and the testator and all the beneficiaries agree that we can change the trust we don’t even have to go to court. We actually have a process that even if the original testator, the person who created the document is deceased, and the beneficiaries have a reason that this trust needs to be changed, we actually have a process under the probate code to allow us to go into court and present our case and have a judge rule whether or not we can change it. Usually, the judge will allow it if a material purpose or some reason we can present to the court shows this trust should be changed.
Capital gains taxes are very high. If we have that opportunity to draft something and help clients out to make sure that not only can we avoid estate tax for your beneficiaries but we can avoid or reduce income tax for your beneficiaries I think it behooves us to do so.”
What if Beneficiaries Do 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 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.
Annual Review of Trust
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 consult with a trust attorney well-versed tax laws and Ca Probate Code 15404 if you need to modify or end a trust.
Selling Real Property Held in Trust
If you need to sell real property held in trust, or if you are a successor trustee of a trust and you want to sell real property, give Kathleen Daniels a call. Kathleen is trained and certified in probate and trust real property sales. Kathleen may be reached at 408-972-1822.