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A living trust is one that you create during your lifetime, allowing you to have control over the assets in it as a trustee. Creating a living trust is one of the most fundamental ways an individual can provide a seamless transfer of assets when they die. Creating a trust and then funding it with your assets means that the trust now owns those assets and, upon your death, they will be transferred to the beneficiaries of the trust without going through the time-consuming process of probate.

But there are times when the trustor wants to make changes to a living trust. There may have been changes in beneficiaries, such as a new birth or death in the family, or an asset has been sold, or the trustor has had a change of heart. Anytime a trust must be changed in any way, it requires that it be amended or revoked and restated.

What Defines a Living Trust?

A living trust is a legal entity that can own anything of value. Most individuals use a trust to distribute assets to others after they die, so it does not have to go through the probate process. Living trusts avoid the probate process entirely, naming a trustee who can distribute the assets in the trust smoothly and expeditiously.

California residents particularly benefit from the use of a living trust since we have one of the most expensive and prolonged probate processes in the United States, typically taking anywhere from eight months to years before heirs can see anything from the estate. Administration of an estate can be costly and these fees are taken from the estate before any heirs see a dime of their inheritance. For those individuals who will rely on assets after the individual’s death, like a spouse or children, having assets in a trust can be extremely beneficial.

Two Types of Living Trusts

There are two types of living trusts, and any changes made to them will be accomplished very differently. Revocable living trusts are extremely flexible and can be revoked or amended at any time during the trustor’s lifetime. Irrevocable trusts, like their name suggests, are much more difficult to change or revoke after they have been created.

Amending Revocable and Irrevocable Trusts in California

Most living trusts are revocable during the lifetime of the trustor. This enables the person making the trust to have control over the assets in it while they are alive. If there is a change that needs to be made, it can be easily amended for small changes. For most significant changes, revoking and restating a revocable trust usually leaves less room for possible contention in the future.

Theoretically, irrevocable trusts cannot be amended or revoked. If situations change after the trust has been created and funded, this can present a problem. But there are some instances where an irrevocable trust may be amended and even revoked. 

Under California PROB § 15403, if all beneficiaries of a trust have given unanimous consent to the modification and termination of the trust, they can petition the court for modification or revocation unless the trust’s continuance is

  • Necessary to carry out the material purpose of the trust, and
  • The purpose of the trust outweighs the reason for the changes

If any of the beneficiaries are minors who cannot give their consent, a guardian ad litem may be needed to represent their interests in the changing of the terms of the trust.

Even without the consent of all the beneficiaries, a trustee or a beneficiary can petition the court under California PROB § 15404(a) or the “changed circumstances doctrine.” If there were circumstances that the trustor was not aware of, or could not have anticipated, and the continuance of the trust would impair the reason it was established, the trust may be modified or revoked. This requires that the party petitioning the court must prove that the modification would advance the trustor’s intention.

Getting the Legal Assistance of a Santa Ana Trust Attorney

Before you decide to change a trust, it is important that you do so correctly to ensure that it is legally enforceable. If you are interested in creating or amending a trust in California, the Santa Ana trust attorneys at the Law Offices of Roshni T. Desai are glad to assist you. Call us at 714.694.1200 or contact us through our online contact page to schedule a consultation.

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