California Law Provides Ways to Amend or Revoke an Irrevocable Trust

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At Ginzburg & Bronshteyn, LLP we are dedicated to providing efficient, effective, and affordable solutions to clients involved in conservatorship cases, trust and estate disputes, as well as other types of family law issues. We are here to help you and your loved ones. To discuss your needs and discover your options, consult the Los Angeles incapacity and estate planning attorneys at Ginzburg & Bronshteyn, LLP.

Our firm also handles disputes over the decedent’s intent. For example, when a person dies, they might have named only some, but not all of his or her children in a will. Most likely, the unnamed children would contest the validity of the will, and estate litigation may ensue to determine whether the decedent intended to omit certain children or whether the omission was unintentional. This is but one example of a dispute that can arise in the execution of an estate plan. If you or someone you know is dealing with a dispute over the administration or execution of trust or estate in California, you should contact an experienced trusts and estates litigation attorney to ensure your interests are represented.

Conservatorships, while intended to exist for the benefit of the protected person, can sometimes become complicated and contentious. If you find yourself in a conservatorship that has become legally combative, consult the conservatorship attorneys at Ginzburg & Bronshteyn. Our experienced Los Angeles conservatorship attorneys are here to help

Modification of trust instrument

There are several reasons why the trustee and/or beneficiaries want to modify the trust. For example, the tax laws may have changed since the trust was drafted, or a beneficiary may have become disabled, in which case, modification of the trust to make it qualify as a Special Needs Trust may be desirable. In the case of an irrevocable trust, Probate Code §15403 provides that if all beneficiaries consent, they may compel modification or termination upon petition to the court unless (1) continuance of the trust is necessary to carry out the material purpose of the trust; and (2) the material purposes of the trust outweigh the reasons for the modification. A guardian ad litem may need to be appointed if the trust beneficiaries include those who are minors or unborn issue.

Another option is found in section 15409 under the changed circumstances doctrine. Under this doctrine, the trustee or beneficiaries may petition the court to modify the trust if, due to circumstances not known and not anticipated by the settlor, continuation of the trust would “defeat or substantially impair” the trust purposes. In other words, the petitioner must demonstrate to the court that modification will still further the settlor’s intent.

The simple way to amend and/or terminate – an irrevocable trust is to use California Probate Code §15404(a). The benefit is that you need not go to Court for approval. The disadvantage is that you must have the approval of all the settlors, also known as the grantors – and all of the beneficiaries.   Also, when there are minor beneficiaries, this can be tricky and the trustee may be uncomfortable without a court order. If one beneficiary does not agree, you can always petition the court for approval.

The other way to amend or terminate an irrevocable trust is for the beneficiaries to petition the Court under California Probate Code §15403(a).

As to termination:
A. Section 15409 of the Probate Code provides that:
“(a) On petition by a trustee or beneficiary, the court may modify the administrative or dispositive provisions of the trust or terminate the trust if, owing to circumstances not known to the settlor and not anticipated by the settlor, the continuation of the trust under its terms would defeat or substantially impair the accomplishment of the purposes of the trust. In this case, if necessary to carry out the purposes of the trust, the court may order the trustee to do acts that are not authorized or are forbidden by the trust instrument.

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