What Happens to An Irrevocable Trust When the Grantor Dies?

An irrevocable trust, however, has a much more complicated process. In irrevocable trusts, several factors determine What Happens to An Irrevocable Trust When the Grantor Dies.

 

How Does a Trust Work?

An estate trust is a fiduciary arrangement in which a third party (the trustee) holds the title to trust assets until the assets pass to their beneficiaries after trust administration. Grantors create trusts, and successor trustees elect their grantors to manage them after they pass away or become unable to.

 

Irrevocable Trusts: What Are They?

Irrevocable trusts are contracts in which the grantor deposits assets into them. They retain ownership of the assets but no longer control them. The question now is: who controls these assets?

Trustees manage these assets according to the grantor’s instructions. When the grantor dies, all the assets in the trust are legally transferred to the beneficiary (more about that later).

Irrevocable trusts are particularly useful because they allow you to avoid probate. A process by which an executor is granted legal authority over your property and estate after your death.

There are both time and cost implications for the beneficiaries because, first of all, probate must take place before distributions go to beneficiaries, and the court must supervise it.

The executor named in a will oversees all aspects of the process. Still, if there is no executor, there will be no representation of the deceased grantor’s wishes in the probate process, which will take much longer.

The trustees of a trust will manage the assets according to your instructions. Without the involvement of the court or executors picked by the judge. By naming your executor before you pass away, you avoid this problem.

Many people take this route because it avoids passing on taxes to their heirs.

 

In What Situations do Trusts that are Revocably become Irrevocable?

A revocable trust can become irrevocable in one of two scenarios.

 

When the grantor dies.

If the grantor dies, the trust is irrevocable. In revocable trusts, the grantor is the trustee and the first beneficiary. We need an Employer Identification Number when the grantor of a revocable trust dies. In addition, the trust must file tax returns as its entity, which requires an EIN.

 

Incapacity of grantor

Revocable trusts are also irrevocable if the grantor becomes incapacitated and cannot decide how the trust operates. To confirm the diagnosis of incapacitation, a medical professional must examine the patient thoroughly.

Once the grantor has signed a document confirming their incapacity, there is a successor trustee. Trusts are irrevocable only if the grantor becomes incapacitated for some time. After which they become revocable again.

 

How Does an Irrevocable Trust Work When the Grantor Dies?

Upon the grantor’s death, the successor trustee will distribute trust assets. A grantor’s death does not cause an irrevocable trust to cease existing. It continues to exist until all the trust’s assets have been distributed.

 

 

Managing the assets of the minor beneficiaries and placing them in a sub-trust will also fall under the responsibility of the successor trustee if they are minors. However, the sub-trust will remain active until the beneficiary is legally allowed to receive the assets without supervision.

The successor trustee will also have the following additional responsibilities:

• Beneficiaries are informed about the existence of trust
• Trust appraisal of assets
• Incorporating and dispersing assets
• How to Prepare an Affidavit of Assumption of Duties
• Returns of tax for grantees

Occasionally, a grantor designates more than one successor trustee. In such cases, the trustees must cooperate to meet the trust’s obligations. It depends on the trust whether the successors must agree on any action or if they may be legally free to do so independently.

 

Are Irrevocable Trusts Modifiable?

As you know, irrevocable trusts expire when the grantor dies. After an irrevocable trust begins, we can make it more effective by modifying it. In California, irrevocable trusts may only terminate, not modified.

To accomplish this, a trustee will need evidence that the grantor was mentally competent when he signed the document or that they had capacity during the gradual death process. We can use a court-approved termination agreement only by the beneficiaries to revoke a trust since the creator no longer controls the trust.

Revocation of an irrevocable trust will not respect the distributions made from the original trust. Assets will be distributed following Florida intestacy laws in the event of death without a new will.

Even if the creator cannot directly modify the trust, alterations are still possible to some extent.

For instance, we can use a trust amendment to change the trust’s terms. Please note that you can only use this for minor changes, such as changing beneficiaries or trustees, not for additions or deletions.

When the value of the trust assets increases, the court can also decant the trust. Whenever the value of the property in the trust increases, the court can modify the trust terms.

Although the trust has no direct modification, the creator can still somewhat modify it. By amending the trust, they can make minor changes, such as changing the beneficiaries or trustors, but not removing or adding assets to the trust.

It is also possible to decant a trust if its assets have increased in value. For example, if the property value in the trust has increased, we can modify the trust term. Following the death of a trust grantor, the successor trustee becomes the trustee.

 

Trustees in More Than one Position

In some trust documents, the successor trustees must act together, even if their names are separate. For example, a trust document may require all successor trustees to agree on any action concerning living trust property, but it may also allow them to act independently.

An alternate successor trustee is named if one of the successor trustees cannot serve. If all the successor trustees cannot serve, the alternate successor trustee takes over.

 

Resignation of a Trustee

When a trustee resigns, they should prepare and sign a notice of resignation and deliver it to the person destined to replace them. The last acting trustee may appoint an individual to take over if no one named in the trust document is qualified.

Beneficiaries rarely become extremely unhappy with how trustees handle trust property. For instance, the child’s beneficiary in a sub-trust may complain that their trust’s trustee doesn’t invest enough into their education. Without resolving the dispute, the beneficiary can file a lawsuit to force the trustee out of office.

 

Appraisals

A trustee who serves as a successor to a deceased grantor should obtain an appraisal of all significant trust assets promptly. Two reasons make this important:

• As soon as a property is inherited, the new owner has a new tax basis on that property based on the market value at the death date. When the property eventually sells, the new owner must know the market value to calculate the tax liability properly.
• To calculate the value of assets to file an estate tax return, the executor or trustee can either make the valuation as of the date of death or six months later. The earlier you make a reliable estimation, the easier to compare it with the last valuation.

 

How to Prepare an Affidavit of Assumption of Duties

It will be necessary for the successor trustee to demonstrate their authority over the trust, particularly in real estate transactions.

The trustee may need to show both the trust document and the grantor’s death certificate to prove the trust is valid. In addition to preparing a sworn statement (affidavit) that states the facts that grant the trustee authority. The county land records office can record (make public) this document.

This kind of statement doesn’t have a set form in most states, but it should include the following:

• Trust name
• Signed on, and the date of the trust.
• Trustees’ successors’ names.

Death certificates are available online in many places, but you need to sign the statement before a notary public. Certifiable copies of the death certificate are available from your country or state’s local vital records.

The trustee is responsible for keeping trust beneficiaries updated on trust administration. This rule requires trustees to ensure that beneficiaries have adequate information to enforce their legal rights, such as preventing misappropriation of trust assets.

Generally, there is no need to communicate with beneficiaries of a simple probate-avoidance trust. (The successor trustee might be the only beneficiary.) This is because assets are held in the trust only long enough for the trustee to gather and distribute them.

 

What is the Procedure for Dissolving an Irrevocable Trust after Death?

California Probate Code allows the modification or dissolution of irrevocable trusts after the grantor has passed away in certain situations, although it is impossible to modify them.

 

Code of Probate §15403

A beneficiary can petition the court to modify or terminate a trust if all the beneficiaries agree, but suppose the trust must continue for the material purpose. If that is the case, the court cannot modify or terminate the trust unless it determines that the reason for modification is more important than the trust’s material purpose.

 

Code of Probate §15409

If unforeseen events prevent the trust from accomplishing its intended purpose, a trustee or beneficiary may ask the court to modify or terminate it under Probate Code §15409.

If a beneficiary becomes disabled, it may be necessary to convert the trust into a Special Needs Trust to provide for the beneficiary.

 

What is the Maximum Duration of an Irrevocable Trust?

An irrevocable trust interest must vest or terminate within 21 years or 90 years of the death of the last potential beneficiary who existed when the trust was created, according to California’s “Rule Against Perpetuities.” The trust may be void ab initio if neither of these conditions exists.

Trusts cannot remain open indefinitely after their grantor dies. However, many trusts specify that the trust assets will transfer and the trust will end after the grantor dies.

 

Do Trustees or Beneficiaries have the Right to Contest Trusts?

Several of the most common reasons a trust can fail. A beneficiary or trustee may contest a trust if they can prove it is invalid.

Influence or duress without consent

An undue influence or harshness in the creation or modification of the trust is subject to challenge through a trust contest. Undue influence occurs when a third party manipulates the grantor to create or modify a trust.

For the third party’s manipulation to overwhelm the grantor’s free will. The amount of influence exerted over the grantor must be extreme. An influencer who manipulates the grantor under duress uses direct threats or force.

 

Forgery or fraud

A beneficiary or trustee can also challenge the validity of a trust instrument if it evolved through fraud. For example, the grantor may trick them into signing the trust by a third party, such as by telling them they are signing another legal document. If the document or the grantor’s signature is fake, a trust can also fail by fraud.

 

Incapacity to think clearly

The grantor must possess mental capacity (be “of sound mind”) when executing a trust for it to be valid. Legally, a grantor is not required to understand the consequences of their actions. However, a grantor may breach a trust if the grantor is not aware of the consequences of their actions.

 

Contact With a Trust Litigation Lawyer.

An irrevocable trust can be challenging to dissolve, modify, or contest, so it is always best to consult a trust litigation attorney before proceeding. To determine if you have sufficient legal grounds to terminate or invalidate the trust, consult a lawyer about the most likely course of action. The best way to succeed in trust litigation is to partner with a knowledgeable attorney.