Critter Corner: Why Would You Revoke a Revocable Trust?

Hayek 1Dear Hayek,

This question is more for curiosity than anything. I know that revocable living trusts can be revoked. How would someone go about doing so and why would they ever want to?

Thanks!

Reva Cabull

Dear Reva,

Revocable living trusts, as their name implies, can be altered or completely revoked at any time by their creator — the person who established them — typically called the Settlor or the Grantor. The first step in dissolving a revocable trust is to remove all the assets that have been transferred into it. This typically means changing title from the name of the trustee back to the name of the person who created the trust. For most people, this is the end of the process, as there is rarely ever a need to “formally revoke” a revocable trust once it has been emptied of its assets. In fact, in the 35 years that I have been practicing law, having prepared upwards of 10,000 revocable living trust, I have never had a client actually revoke a revocable trust.

If someone wanted to formally revoke a trust, it would be a very simple matter of signing a trust revocation document.

Reasons for Revoking / Unfunding a Revocable Living Trust

People might unfund a trust for any number of reasons. Usually, it involves a life change. One of the most common reasons for unfunding a trust, for example, is a divorce, if the trust was created as a joint document with one’s soon-to-be ex-spouse.

A trust might also be unfunded simply in the event that the grantor wishes to make changes that are so extensive that it would be easier to dissolve the trust and create a new one than to try to alter it. A revocable trust may also be unfunded if the grantor wants to appoint a new trustee or change the provisions of the trust completely; however, this can often also be done through an amendment and restatement of the trust.

Keep Your Estate Planning Documents Up to Date

For anyone who has estate planning documents in place, much of the time they can be updated rather than unfunded or revoked. In fact, it’s a wise idea to get your Estate Planning, Asset Protection, and Incapacity Planning documents reviewed at least every 3-5 years (although for your Power of Attorney, Evan generally recommends it be re-signed every year since many banks won’t accept a POA that’s more than a year old). Similarly, the older an Advance Medical Directive is, the less likely it is that it will be honored by a doctor or hospital. With the tax laws that went into effect in 2020, it is especially important to have your legal and financial situation reviewed as soon as possible.

Estate planning documents should also be reviewed during major life changes such as death of a spouse, remarriage, birth of a new child or grandchild, and more. See the entire list here. The reason for updating your planning documents during these life changes is that it’s the only way to ensure that your estate plan truly reflects your current wishes.

Hope this is helpful,

Hayek

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