Estate Planning Law

Can an Irrevocable Trust be Modified Under Florida Law?

A trust can be created by an individual to provide for the distribution of their property after they die. Moreover, a trust can be created during one’s lifetime, or it can be created at the time of death through a will. 

But many people have questions regarding whether an irrevocable trust can be modified. As per Florida law, irrevocable trusts may be modified by the grantor and the beneficiaries, but only via execution of nonjudicial settlement agreements. The following article will discuss how you might change your irrevocable trust under Florida law and how this may affect your beneficiaries.

If you have any questions after reading this article or need legal counsel for your irrevocable trust, we invite you to contact the law office of Doane & Doane today. Our attorneys specialize in irrevocable trusts, wills, estate plans, and more. So contact us if you need experienced legal counsel in Florida.

What Is an Irrevocable Trust?

An irrevocable trust is a legal arrangement in which an individual, known as the grantor, deposits assets into the trust. This person maintains ownership of the asset but gives up control over it. The trustee manages the asset according to terms set out by the grantor. When the grantor dies, the beneficiary is entitled to receive all of the assets in the trust. 

Thanks to an irrevocable trust, you can avoid probate. Probate is a process that involves giving an executor legal authority over your estate and property after you die. It usually involves court supervision and takes place before any distributions are made to beneficiaries or heirs. This can be expensive and time-consuming for your beneficiaries (especially if they live far away). 

A will often names an executor who will handle this process for you; if not, probate might take longer because there will be no named executor to represent your wishes. Trusts can avoid this process entirely by naming an executor before death—the trustee becomes responsible for distributing assets according to your wishes after you pass away without requiring court supervision or oversight from an executor appointed by a judge.

You can also avoid taxes. Sometimes people put assets into trusts so that their heirs avoid taxation when they inherit those assets. This may be because they want to provide financial support for another family member

How to Change an Irrevocable Trust Under Florida Law

Florida law views trusts as either revocable or irrevocable. In most cases, an irrevocable trust cannot be modified once it has been established, but it can be revoked. An irrevocable trust created during an individual’s lifetime is typically called a living trust, while an irrevocable trust that is created at death through a will is known as a testamentary trust.

There are two ways to change an irrevocable trust under Florida law: revocation of the previous irrevocable trust and establishment of a new irrevocable trust. 

Please note that if you want to revoke your predecessor’s irrevocable trust, you must have evidence that they were competent when they signed the original document or that they had capacity on the date of death. 

A new living will requires clear and convincing evidence of competency or capacity on the date of signing; this may require expert witnesses to testify about your beneficiary’s mental state during the time in which the will was created.

Regardless of the reasons for revoking an irrevocable living or testamentary trust, beneficiaries will not inherit any property distributed by the original document if it is revoked. 

When there is no new will in existence upon one’s death, assets pass according to intestacy laws; this means assets are distributed according to state statutes without any guidance from an individual’s wishes for the distribution of their property after their death.

What Happens When an Irrevocable Trust Is Changed?

If an irrevocable trust is changed at all, it means that the beneficiary’s distribution has been altered. This distribution can be reduced or increased. It can also mean that the terms of the trust have changed in some way. However, if a settlement agreement is reached with the consent of the grantor, the beneficiaries can receive assets according to the grantor’s wishes. 

Moreover, revoking an irrevocable trust does not necessarily mean that it will be distributed to the beneficiaries immediately. The revocation of a trust could allow for certain changes to be made to the terms of the trust, which could include distribution provisions; however, there are no guarantees with regard to how long it will take before these changes are executed.

Call Doane & Doane for Your Irrevocable Trust Needs

Are you seeking legal counsel regarding an irrevocable trust? At Doane & Doane, we specialize in all aspects of estate planning, wills, and trusts. To ensure that you get the legal representation that you deserve, contact our law office today. You can get started by calling 561-656-0200 or submitting our contact form.

The information in this blog post is for reference only and not legal advice. As such, you should not decide whether to contact a lawyer based on the information in this blog post. Moreover, there is no lawyer-client relationship resulting from this blog post, nor should any such relationship be implied. If you need legal counsel, please consult a lawyer licensed to practice in your jurisdiction.