The concept of committing to something forever can be especially daunting when you change your mind after the fact. For all practical purposes, when you place your assets into an irrevocable trust, you give up both control and possession of them for good. However, as more individuals turn to trusts for estate-planning purposes, some states have added legislation providing ways to undo them, even if you initially intended the trust to last until your death and possibly longer.
Call a meeting of all the beneficiaries named in your trust, as well as the person you named as trustee. Explain that you’ve had a change of heart or a significant change of circumstances that requires you to revoke the trust. Most states allow you to do so if all beneficiaries agree in writing.
Write a paragraph stating in clear language that you are revoking the trust, that you have spoken personally with each beneficiary and that each has consented to the action. Make signature lines for each beneficiary on the left side of the page and a signature line directly opposite it for a notary public to witness the beneficiary’s signature and notarize it. If you’ve named too many beneficiaries and all their signatures will not fit on one page, do a separate page for each of them. Repeat your paragraph and signature lines on all pages and make one for each beneficiary. Do the same for your trustee.
File the consent or consents with the court that recorded your irrevocable trust when you created it. Check with the clerk when you do this to find out if your state is one that requires the court’s approval in addition to the consent of your beneficiaries. In some states you might have to file a motion and request a hearing with a judge expressly granting you permission. The judge will then issue an order allowing you to revoke your trust if everyone agrees and if he thinks it's in the trust's best interest.
If even one of your beneficiaries does not consent to the revocation, the court won't allow it. If this happens, you might have one other option. The person you named as trustee usually has complete authority over your trust and its assets. The trustee can create a second trust and either sell or transfer the assets from the first one to the new one. He can create the second trust with more favorable terms to your current situation. This might allow you to reach some of your assets, change beneficiaries or make other changes to accommodate your change of heart. If your beneficiaries won't consent and this is something you’re forced to consider, speak with a professional to make sure it’s possible in your state. You would also need the agreement of your trustee. When you created the trust, you gave him control, so you can't make this sort of move without his cooperation.
- Blustein, Shapiro, Rich & Barone; Revoking an Irrevocable Trust; Richard J. Shapiro
- LegalMatch: Revocation and Modification of Irrevocable Trusts
- Michigan Elder Law & Estate Planning; Revoking an Irrevocable Trust; Jerrold Bartholomew; June 2008
- Smith, Gambrell & Russell: Diamonds Are Forever…Irrevocable Trusts May Not Be
- Patterson, Belknap, Webb & Tyler; Irrevocable Trusts -- Are They Always Set in Stone?; Michael S. Arlein; 2004