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Terminating Irrevocable Trusts I: Changing What Can’t Be Changed

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Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can.  For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor to keep more of your assets for your heirs and not hand them over to the government by way of taxes.

Irrevocable trusts are trusts in which the grantor, i.e. the trust maker, relinquishes all control and ownership over the trust and the assets used to fund the trust. Thus, in theory, the trust can only be changed or canceled per the ways denoted by trusts terms and usually only then with the blessing of the trustee and/or trust beneficiaries.  

So, why would anyone give up control to another and chose to use irrevocable trusts? Conversely with living trusts, grantors keep “the keys” to the trust while with irrevocable trusts “the keys” are given up. In the eyes of the law, generally, what is inside an irrevocable trust no longer belongs to the grantor. Thus, grantors aren’t taxed on what’s inside these trusts and those with claims against the grantor can’t extend potential recovery to these assets as well. This is all well and good, but with everything in life, situations change. A previous estate plan, and accompanying established trusts, sometimes no longer serve the best interest of the grantor and their family. With current sky-high estate tax exemptions, the normal administrative costs associated with trust management, and, perhaps, an adjusting need for liquidity or differing type of asset control, some individuals are evaluating whether it’s worth keeping an irrevocable trust. If this is you, don’t despair. Despite what their name suggests, irrevocable, there are ways to terminate an irrevocable trust. Before, however, anything drastic like trust termination occurs, always consult an experienced Cleveland estate planning attorney to figure out all your options and plot the best course of action.  

Now if after consultation with professionals regarding your estate plan reveals that your irrevocable trust no longer serves your best interests, termination is an option. There are several methods for terminating trusts in Ohio, termination by court order, termination via private agreement, and termination by discretionary distribution. This blog concerns primarily the first method, court ordered trust termination.

   1.Court-Ordered Trust Termination  

In 2007 Ohio passed the Ohio Trust Code which governs the creation, management, and termination of trusts. Chapter 5804 primarily is the vehicle courts use to terminate trusts depending on the circumstances. Now, the most common circumstances in which this method of termination is used is either via independent motion on a probate court to terminate a trust for justifiable cause or as a recovery prayer in a civil suit that someway touches on a trust significantly enough to justify termination. Again, consult an experienced Ohio estate planning attorney, they will know when, how, and where to commence trust termination proceedings.    

       A.Trust Termination by Revocation or by Terms 

Per O.R.C. § 5804.10, a trust may be terminated to the extent that a court finds that: 

  1. It is revoked or expired pursuant to its terms; 
  2. There is no remaining purpose of the trust to be achieved; 
  3. The purpose of the trust has become unlawful or impossible. 

This particular code section denotes the authority/power of the court to terminate a trust. The respective standing, or ability, for a grantor, trustee, and trust beneficiary to petition to terminate a trust are also denoted within the Ohio Trust Code. Note, however, that within R.C. § 5804.10 no mention of settlor, trustee, or beneficiary consent is denoted. This means that if a court thinks termination of a trust is appropriate, they can do so. Now whether or not a particular probate court will take the feelings and considerations of the settlor, trustee, or beneficiaries into account when deciding to terminate a trust is dependent on the judge and jurisdiction. Again, you never can guarantee a particular outcome when you resort to court intervention. That is why you should always consult with an estate planning attorney before asking a court to do anything with your trust.        

        B. Termination of Noncharitable Irrevocable Trust 

Per O.R.C. § 5804.11, an irrevocable trust can be terminated by agreement, authorized by a court, with the consent of the settlor and all of the beneficiaries. Note, however, the trustee’s consent is not required. Though technically a court must approve of termination via § 5804.11, if all valid consent is obtained from the settlor and beneficiaries and all are competent to give such consent, a probate court will almost always approve of the termination and issue the order even if such termination is inconsistent with the terms of the trust and the trust’s material purposes.  

       C. Court Intervention Due to Changing Circumstances  

 Per O.R.C. § 5804.12, a probate court may terminate a trust due to a change in circumstances that has occurred since its creation. Per this section of the Ohio Trust Code:   

(A) The court may modify the terms of a trust or terminate the trust if because of circumstances not anticipated by the settlor modification or termination will further the purposes of the trust. To the extent practicable, the court shall make the modification in accordance with the settlor’s probable intention. 

(B) The court may modify the administrative terms of a trust if continuation of the trust on its existing terms would be impracticable or impair the trust’s administration. 

Further, upon termination of trust via this section, the trustee must distribute the trust property in a manner consistent with the purposes of the trust. O.R.C. § 5804.12 (C). An action under this section to terminate a trust may only be brought by a trustee or beneficiary and a court must act as close as possible to the probable wishes of the settlor but only to the extent practicable in the circumstances. Further, a termination under this section must be due to circumstances not anticipated by the settlor and such termination must be in accordance with the trust purposes. As such, though circumstances may allow for termination of a trust, interested parties just being disgruntled or dissatisfied with a trust’s management is not sufficient to warrant termination.    

Trusts are a useful estate planning tool to ensure increased permanence of your lifetime earnings and instructions down through the generations. Like all things, however, nothing is unalterable. Being aware of the potential reasons and methods for revoking irrevocable trusts can allow a settlor to dictate more effective terms but also allow avenues for change if completely unexpected or frustrating events occur. An experienced Cleveland estate planning attorney is invaluable in creating, managing, and, if the time comes, terminating your trusts.     

 Helping You And Your Loved Ones Plan For The Future

About the Author: 

Mike is a contracted attorney at Baron Law LLC who specializes in civil litigation, estate planning, and probate law. He is a member of the Westshore Bar Association, the Ohio State Bar Association, the Cleveland Metropolitan Bar Association, and the Federal Bar Association for the Northern District of Ohio. He can be reached at mike@baronlawcleveland.com.   

Disclaimer: 

The information contained herein is general in nature, is provided for informational and educational purposes only, and should not be construed as legal or tax advice. The author nor Baron Law LLC cannot and does not guarantee that such information is accurate, complete, or timely. Laws of a particular state or laws that may be applicable in a given situation may impact the applicability, accuracy, or completeness of the preceding information. Further, federal and state laws and regulations are complex and subject to change. Changes in such laws often have material impact on estate planning and tax forecasts. As such, the author and Baron Law LLC make no warranties regarding the herein information or any results arising from its use. Furthermore, the author and Baron Law LLC disclaim any liability arising out of your use of, or any financial position taken in reliance on, such information. As always consult an attorney regarding your specific legal or tax situation.

A Trust Unfunded Is Just Paper And Ink, The Importance Of Funding Your Trust,

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Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can.  For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor to keep more of your […]

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I’ve Changed My Mind, How Do I Modify Or Revoke My Trust?

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Baron Law LLC, Cleveland, Ohio, offers information for you to reflect upon while you are setting out looking for an estate planning attorney to help protect as much of your assets as you can.  For more comprehensive information contact Baron Law Cleveland to draft your comprehensive estate plan to endeavor to keep more of your assets for your heirs and not hand them over to the government by way of taxes.

People change their minds. Circumstances change, family dynamics shift, realities, needs, and desires are fluid. Estate plans reflect the lives of their owners at the moment of their creation. As such, the want, and sometimes need, to adjust and change an estate plan is common. And since a major part of many people’s estate plans are one or more trusts, it is important to understand when, how, and if you can change the terms your trusts or eliminate them outright.

Modifying or revoking an existent trust is not a straight forward prospect. Trusts fundamentally are legal agreements and thus, are bound by Ohio law and procedure. Trusts bring with them a multitude of benefits, from tax incentives, asset protection, and privacy. The other side of trust use is the conformity with the law and strict adherence to, sometimes burdensome, procedure. The law must ensure any changes to trust terms are legitimate and do not improperly harm the settlor, named beneficiaries, or trust assets. What can or cannot be changed within a trust and who can or cannot effectuate that change largely depends on the type of trust and the circumstances of its creation. The modification or revocation of an existing trust is a nuanced area of law, as such, an experienced Ohio estate planning attorney should be retained at the earliest possible opportunity.

The first question to ask regarding changing a trust is, what type of trust do you have? Though there exist numerous types of trusts out there, the focus here is between revocable and irrevocable trusts. Generally, modification or revocation by a settlor is not available for irrevocable trusts. Hence, the significance of the irrevocable nature of irrevocable trusts. (Though recent changes in Ohio law made it possible to overcome the difficulties to revoke or amend an irrevocable trust, that is a topic for a later discussion.) So, amending or revoking a trust primarily concerns revocable trusts. The next question is how many settlors, i.e. trust makers, are there?

Only one Trust Maker

If there is only one trust maker for a revocable trust, revoking or amending a trust is straightforward. Either follow the instructions in the trust documents or use a method that is highly likely to follow the intent of the individual who made the trust, curiously in this instance, you. Ohio law provides:

The settlor may revoke or amend a revocable trust by substantial compliance with a method provided in the terms of the trust or, if the terms of the trust do not provide a method, by any method manifesting clear and convincing evidence of the settlor’s intent… O.R.C. § 5806.02 (C).

Clear and convincing evidence is a legal term of art that means, in this context, the method of revocation or amendment is highly and substantially more probable than not to be true to the intent of the trust settlor. Obviously, this is a subjective standard so, in most cases, if you give a good faith effort and act honestly with no nefarious purpose, you should be alright. Even more obvious is that this situation can be avoided, and no subjective standard need be considered, if the terms of your trust are competently and comprehensively drafted, properly addressing the possibility of revocation and/or amendment within the terms of the trust. This is why an experience Cleveland estate planning attorney is critical, you really can’t put a price on good legal drafting.

Two or More Trust Makers

If there are two or more settlors, it gets more complicated because each party has an equal say in modifying or amending the trust. Thus, the rules attempt to strike a balance between the party who wants a change and the party who doesn’t, focusing primarily on the type(s) of trust property effected by the potential change. Ohio law provides:

If a revocable trust is created or funded by more than one settlor, all of the following apply:

To the extent the trust consists of community property, either spouse acting alone may revoke the trust, but the trust may be amended only by joint action of both spouses.

To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor’s contribution.

Upon the revocation or amendment of the trust by less than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment.

Since Ohio is not a community property state, the rule regarding community property is really only relevant in situations where Ohio couples or joint owners possess property in foreign states which follow community property law, such as Wisconsin or California. For most, the non-community property rule applies most of the time. Here, trust amendment or revocation power is tied to original trust property ownership. This is why accurate and timely accounting of trust funding is paramount, so you can track who put what in and have evidence to back it up. Again, this is why an experienced Ohio estate planning attorney is important, he’ll remind you to keep an accounting of your trust funding to provide for this possibility. Granted, this rule does not expressly provide how to account for jointly owned property put in trust. Ohio law does address this possibility, however, it won’t be examined at this time. Ask your estate planning attorney if you’re looking to amend or revoke a joint trust which was funded with jointly owned property.

Ohio law also allows your power of attorney and guardian of the estate to revoke or amend a trust, however, only to the extent expressly authorized by both the terms of the trust and the authority given to your agent. Make sure the terms of your power of attorney and/or guardianship provide for this contingency. Changing a trust in anyway is a serious action that deserve serious consideration of its consequences. Consult a local estate planning attorney to make sure this is the best course of action and any hidden pitfalls are revealed before acting.

Helping You And Your Loved Ones Plan For The Future

 

About the author: Mike E. Benjamin, Esq.

Mike is a contracted attorney at Baron Law LLC who specializes in civil litigation, estate planning, and probate law. He is a member of the Westshore Bar Association, the Ohio State Bar Association, the Cleveland Metropolitan Bar Association, and the Federal Bar Association for the Northern District of Ohio. He can be reached at mike@baronlawcleveland.com.

Disclaimer:

The information contained herein is general in nature, is provided for informational and educational purposes only, and should not be construed as legal or tax advice. The author nor Baron Law LLC cannot and does not guarantee that such information is accurate, complete, or timely. Laws of a particular state or laws that may be applicable in a given situation may impact the applicability, accuracy, or completeness of the preceding information. Further, federal and state laws and regulations are complex and subject to change. Changes in such laws often have material impact on estate planning and tax forecasts. As such, the author and Baron Law LLC make no warranties regarding the herein information or any results arising from its use. Furthermore, the author and Baron Law LLC disclaim any liability arising out of your use of, or any financial position taken in reliance on, such information. As always consult an attorney regarding your specific legal or tax situation.

 

estate planning attorney

Testamentary Trusts

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Cleveland, Ohio Estate Planning Attorney Dan A. Baron offers the following on Testamentary Trusts.

Testamentary trusts are a great way to plan and safeguard your assets for minor children.  In other uses testamentary trusts can be used for beneficiaries with addictions or disabilities.   Unlike most trusts, testamentary trusts are incorporated into your last will and testament and are funded only after the creator’s death.   The biggest reason people use testamentary trusts is because they are able to control their assets after they die.

For example, if Mom and Dad die in a car accident leaving behind two young children, they would not want their $500,000 estate being left in the hands of nine and ten-year old.    Instead, Mom and Dad create a last will and testament and incorporate language that appoints a guardian for the children and trustee of their testamentary trust.   The trust parameters outlined for the Trustee to follow often include broad language like “to provide for the health, education, and well-being of my children.”   The trustee controls the money and then distributes it to the children as they need it.  Most often, the remaining balance left in the trust is distributed to the children once they reach the age of 25.

It’s important to remember that unlike most trusts, testamentary trusts do not avoid probate.  Instead, testamentary trusts are created after the probate process is complete.  Assets left from probate fund the trust and the trustee is then responsible for carrying out the wishes of the deceased.  Once the assets are in trust, they are protected from creditors and litigation.  However, there is no asset protection for the creators before death.

To learn more about testamentary trusts and how they might be beneficial for your estate plan, contact Baron Law LLC today at 216-573-3723.  You will speak directly with an attorney who can assist you.

 

The information contained in this article is provided solely for convenience purposes only and all users thereof should be guided accordingly. This article is not meant to provide legal advice. If you wish to receive a legal opinion or tax advice on the matter(s) in this report please contact our office and we will speak with you directly.