The Elrod Firm

ASK THE PROS

Can I still Change My Trust?

Justin, my spouse and created a Revocable Living Trust. My spouse passed away. Can I make changes to the trust even though my spouse is no longer living? – Mark

The answer to this question will depend on the specific language of your trust. Some trusts remain revocable upon the death of the first spouse, while other trusts become irrevocable upon the death of the first spouse. Revocable means changes can be made to the terms of the trust and irrevocable means the terms of the trust cannot be changed. Determining which option is right for you and your family is a personal choice. However, there are benefits to both options.

Sometimes it makes sense for the surviving spouse to be able to make changes to the terms of the trust. This flexibility gives the surviving spouse significant control of what happens to the trust and trust assets even after the death of the first spouse. For example, the surviving spouse could amend the trust to change trustees to get additional help in managing trust assets or to allow a beneficiary to receive more of the inheritance because of an unforeseen health problem.

On the other hand, sometimes families creating trusts decide they would prefer that the surviving spouse not have so much flexibility. This might be the case for a late-in-life marriage where one spouse has children of his or her own. They may decide it is important to them that the trust become irrevocable upon the death of the first spouse to guarantee that the surviving spouse doesn’t change anything the couple felt was important at the time they created the trust, including the beneficiary designations.

For most couples, providing for the surviving spouse is an important priority to consider when creating a trust. There is more than one way to do this, so it is important to understand all of your options when doing your estate plan.

 

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