Petitioning to Modify a Trust
Trusts have been gaining in popularity in recent years, as an aging population looks for the most efficient means to pass wealth on to the next generation. Trusts allow options that traditional documents such as last wills and testaments may not. For example, devising one’s assets through an inter vivos trust (living trust) is often appealing because it allows the estate (or at least the assets covered by the trust) to pass on to heirs without going through probate. However, changing the terms of a trust can be more difficult than modifying other types of estate planning documents. If you have questions about how trusts work or if you already have a trust and are petitioning to modify a trust, knowledgeable Nashville estate planning attorney Randy Ratliff can help.
There are actually several different types of trusts that can be used as part of an estate plan, but these trusts typically fall into just a couple of categories: testamentary trusts and living trusts. Testamentary trusts generally do not become effective until the person who made the trust passes away. These trusts can usually be modified at any time, as long as the testator of the will remains mentally and legally competent. The exception to this rule would be in cases of so-called “mutual wills,” in which a married couple agrees for their wills (or “joint will” in some cases) to be irrevocable. A trust set up in a mutual will is modifiable as long as both people are still living and competent to enter into a contract, but both must agree to the change. After the first spouse dies, a mutual will, mirror will, or reciprocal will becomes much more difficult to change. If you find yourself in this situation, you should talk to an attorney about the options that you may have. It may still be possible to make a change, depending upon the circumstances and the documents themselves.Petitioning to Modify a Trust
Inter vivos, or living, trusts may be revocable or irrevocable. As the name suggests, a revocable living trust is relatively easy to modify because such documents are, by their nature, revocable. If the trustor so desires, they can completely do away with such a trust in most cases. However, they still need to contact an attorney to review the trust documents and prepare any paperwork that may be necessary to effectuate the trustor’s desire to end or modify the trust. Unlike a last will and testament, one cannot just “rip up” a trust document. (This is not a good plan for canceling a will either, since there may be additional copies of the will out there that the testator may have forgotten to destroy.)
Irrevocable living trusts are more difficult – but not necessarily impossible – to modify. The extent to which a modification can be made in these types of trusts, and the difficulty involved in effecting a modification, depends on several factors, including whether the beneficiaries named in the trust consent to the change. In some cases, it may be necessary to file a petition in court asking for permission to change or even terminate a trust document. A skilled trust attorney can offer advice targeted to a particular trust document or family situation.Safeguard Your Assets Through Advice from a Nashville Attorney
While many people wait until fairly late in life to get their affairs in order and plan for the distribution of their assets at death, this does not need to be the case. Even younger adults can benefit from the safety, security, and peace of mind that a well-considered, thoughtful estate plan offers. Nashville attorney Randy Ratliff can help with your trust administration or other estate planning needs, including petitioning to modify a trust. To schedule a consultation with a lawyer, call us at 615-656-8282 or contact us online. We serve people throughout Davidson and Williamson Counties, including in Antioch, Hermitage, Madison, Goodlettsville, Joelton, Franklin, Brentwood, and Cool Springs.