Dissolving a Trust

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“Why Dissolving A Trust? Depending on its nature, you must take several steps to end a trust. For example, revocable trusts can typically be dissolved at will by their founders and owners. Often, all you have to do is fill out some paperwork and distribute the trust’s assets.”

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Dissolving a Trust

However, it’s essential to plan because irrevocable trusts are much more complicated. Having your trust set up correctly and protecting your assets can be helped by a financial advisor.

 

The Law of Trusts and State Law

The first thing to understand is that trusts fall under estate and property law. These are two very jurisdiction-specific areas of law. State laws form the basis for most, if not all, laws governing trusts.

The dissolution of a trust depends entirely on where you live and the type of trust you have, so you should consult a lawyer before making any plans. This article will discuss standard business practices, giving you a sense of what you can expect most of the time. You should consult a lawyer before making any plans, as the details may differ. In some cases, the process may be entirely different.

 

Trust Definitions

Initially, it would help if you understood what terms and aspects make up a trust so that you know how it works. Trusts typically involve three parties:

  • The Founder: Trustors are the people who establish the trusts. They provide the majority, if not all, of the trust’s assets and establish who benefits from the trust and how it operates.
  • The Beneficiary: Trust beneficiaries are those who receive assets from the trust. They can receive cash payments, such as in a trust fund, or access to property, such as a house held in trust by the family. Founders can name themselves as beneficiaries of their trusts, and trusts can have multiple beneficiaries.
  • The Trustee: In addition to managing and overseeing the trust, the trustee is responsible for all administrative tasks associated with the trust’s assets, managing investments, enforcing the terms of the trust, and providing payments to the beneficiaries. Defining who can terminate trusts and how this occurs is important, so it is essential to understand these relationships.

Revocable or irrevocable trusts determine how individuals can end or dissolve them.

 

Trust’s Benefits

Having a trust has several benefits, so you should consider dissolving it first:

  • If you’re sued personally (for example, for your work or employment), a creditor will most likely seek to obtain any monetary judgment against you with any assets you own. As the trust’s assets do not belong to you, they will not be available to the creditor for this purpose in most circumstances.
  • When you pass away, you can use a trust to give your children (or other family or friends) more control over how your assets will be handled or available to them. In many cases, this is not a problem (for example, when a beneficiary is suffering from health or substance abuse issues).
  • When a partner or spouse separates or passes away, or if one or both of you pass away, you may have protection against relationship property claims (e.g., claims against your assets). In recent years, trusts have become less effective in protecting relationship property. We generally recommend a prenuptial agreement, also known as a contracting out agreement, for protecting relationship property. However, trusts do still provide some protection.
  • You can benefit from a trust if you apply for a residential care subsidy in the future. This only applies in a few instances.

 

The Reasons for Dissolving a Trust

In most cases, dissolving a trust is due to changes in circumstances in one’s life. For example, a divorce can result in the revocation of a trust created in a joint partnership with one’s soon-to-be ex-spouse.

There is also the possibility of revoking trusts simply if the grantor wishes to make such extensive changes to the trust that it would be easier to dissolve and create a new trust than to attempt to alter it. If the grantor wishes to change the trust’s provisions completely, they can also revoke it.

 

The Process of Dissolving a Trust

To dissolve a revocable trust, it is empty of all assets; this involves changing titles or deeds. It is necessary to create a legal document stating that the trust’s creator is willing to revoke all the terms and conditions of the trust and dissolve it entirely as the second step in revoking the trust. Legal websites can provide copies of such documents, referred to as “trust revocation declarations” or “revocation of living trusts,” or you can download them from your local probate court.

 

The Process of Dissolving a Trust

 

However, the best thing you can do is have an attorney draw up one for you, or at least review one you already have, to ensure it is correctly drafted and meets all your state’s requirements. It is also usually more accessible for a qualified attorney to ensure everything goes out of trust with many assets.

It is mandatory that the trust’s creator sign and date the dissolution document with a notary public acting as a witness. File the dissolution document with the same court where the trust is registered. This is only if the trust is dissolving. Otherwise, attach it to your trust documents and store them with your will.

 

Revocable Trusts

An individual may amend a revocable trust’s terms, beneficiaries, and assets. A typical revocable trust can be changed or ended at any time by the trust’s founder. For various reasons, individuals can utilize a revocable trust, often called a “living trust.” For example, they can manage their finances, distribute money to family members, or even plan for incapacity.

The ability to revoke a trust can occur for any number of reasons. Most importantly, as the trust’s creator, you might dissolve it if you wish to reformat its terms or if its beneficiaries no longer need its assets.

Typically, the founder of a revocable trust must take the following steps to dissolve it:

 

Develop an asset plan.

As a first step, you need to plan for the assets it holds. This usually means taking assets and redistributing them, for example, by transferring funds into your account. Upon the completion of the trust, you may also instruct the beneficiary to distribute the trust’s assets to its beneficiaries, such as requiring the beneficiary to transfer the trust’s assets to another beneficiary. The trust cannot end with assets still held by it.

 

Prepare an intent declaration.

Creating a declaration of intent is vital before ending a revocable trust. This paperwork varies depending on the state and jurisdiction where the trust resides. In most cases, you must declare the dissolution of the trust and have it notarized. People refer to this as a revocation declaration or revocation of living trust.

 

Obtain a court order.

There are similar steps for winding up a corporation or partnership. A trustor needs to sign the document and date it. Depending on the jurisdiction, a final step may require the trust to register with a judicial body, such as a probate court.

If a trust written or filed with a court is dissolving, it must also be in record with that court. You may not need to file anything with a court in some cases. You can handle these cases by attaching the signed and dated document to the file that governs your asset disposition.

 

Irrevocable Trusts

In an irrevocable trust, the founder has no right to alter it once it goes into effect. While they may contribute assets, they cannot withdraw or remove anything once the trust is in place. Once a trust exists, it operates as its legal entity independent of its trustees or beneficiaries. Once you establish the trust, you cannot amend or remove it.

In most cases, only a court order can dissolve irrevocable trusts. This prevents the trust’s founder from dissolving it independently.

Depending on your state and jurisdiction, you may need the trust’s beneficiaries’ and trustees’ approval to dissolve an irrevocable trust. (If you are a beneficiary, you will probably need approval from the trust’s founder, its trustees, and all other beneficiaries if they are still alive.) Once you have received all parties’ approval, you must petition the court and explain why you want the trust to dissolve.

It is usually necessary to provide a good reason for a judge to dissolve a trust. You can, for instance, prove that the trust’s terms have become illegal or impractical or that the trust is no longer financially viable.

The terms of the trust may no longer meet their purpose if they lack clarity. You may be able to prove a specific relationship no longer exists if the trust relies on a particular relationship, for example, a marriage.

If the judge finds the reason compelling and there is a basis in state law, he will dissolve the trust. Judges evaluate this on the strength of each claim weighed against state law.

Despite that, many petitioners try to unwind irrevocable trusts because they disagree with the terms of the trust. This may mean founders want their assets back or want to avoid passing on this money to a particular beneficiary. Rarely; these are the reasons why irrevocable trusts dissolve. For beneficiaries, it may be because the terms of their distributions no longer suit them.

 

Dissolving Trusts after Death

A trustee takes several steps to administer the trust following the grantor’s death. The trustee vows to oversee all trust administration closely. The trustee cannot personally profit from any actions taken on behalf of the trust. The following are steps taken by the trustee:

  1. Signing the appointment of trust form is the trustee’s responsibility.
  2. Upon a beneficiary’s inheritance notification, they have 120 days to file court contest petitions. The trustee provides each beneficiary with a copy of the final trust and any amendments.
  3. As part of the trustee’s responsibilities, all funds from existing grantor bank accounts are transferred to a trust account. Currently, the trustee also applies for a unique tax identification number.
  4. Trustee inventories all trust assets by consulting valuation experts, legal counsel, and realtors when selling real estate.
  5. A trustee liquidates assets, ensuring the proceeds are fair to the beneficiaries.
  6. Trustees identify all creditors and pay off their debts.
  7. Courts receive the trustee’s accounting report, which they share with beneficiaries.
  8. Beneficiaries receive funds from the trustee.
  9. Closing out the trust is the trustee’s responsibility.

 

Is It Possible For A Successor Trustee To Revoke A Revocable Trust?

Only the grantor can revoke a revocable trust. Revocable trusts are similar to how the grantor manages their bank account before they draft the trust. Though the grantor may be a trustee while alive, any revoke of the Trust must come from their role as the grantor.

Amendments or revocations of revocable trusts are at the discretion of the grantor. Before amending a trust, the grantor should speak with their trust lawyer to ensure all necessary paperwork is completed.

 

Revocation of a Trust and Potential Legal Challenges

The revocation of a trust can raise warning flags for family members, especially when the grantor is old. Someone changes the Trust excessively, for example, by disinheriting a family member, closing it down, or paying an outsider substantial amounts of money.

When that happens, those of legal standing can contest the revocation petition. Those of legal standing may also challenge the revocation if the trustee has breached the duty.

The following charges are contestable:

  • Grantors under undue influence.
  • The grantor needs more mental competency when they make the changes.
  • Missing signatures will result in incomplete documentation.
  • The trustee misappropriated funds.
  • By the trustee, self-dealing is taking place.
  • Trustees’ failure to fulfill their fiduciary duties

 

The Bottom Line

Dissolving a trust depends on its nature. The founder can dissolve a revocable trust at any time. A court order is usually needed to dissolve irrevocable trusts, and most judges will require an excellent reason. To properly set up your trust, you must first plan what you want from it.

Hedy Ghavidel

HEDY GHAVIDEL Managing Partner  Roseville Office  1-866-471-6981  info@attorneysre.com Bio...

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