A revocable trust is a method of protecting assets from probate should the grantor of the trust die. An irrevocable trust is one that cannot be modified by the grantor. Upon the death of the grantor, a revocable trust automatically becomes irrevocable. If a couple sets up a revocable living trust in which both spouses are grantors of the trust, the specific language within the trust will dictate whether the trust becomes irrevocable upon the death of one of the spouses. Otherwise, both spouses must die before the trust becomes irrevocable.
Because control of a joint revocable trust automatically rolls over to the surviving grantor if one of the two grantors dies, many couples who create a revocable trust will list a successor trustee to take over in the event of one grantor's passing, in the event that the other grantor becomes incapacitated and unable to manage the trust. The successor trustee would be required to manage the trust according to any instructions that the couple place into the trust.
Undue Influence and Revocable Trusts
A couple might choose to make a trust irrevocable at the passing of one of the grantors if they were concerned that the other spouse might be forced to make changes to the trust at the behest of undue influence, particularly from a beneficiary of the trust. In some cases, one grantor might not feel the other spouse has the ability to handle money, so language might be inserted to make the trust irrevocable upon that spouse's passing to protect the trust.
Incapacitated Surviving Spouse
In some cases, a couple may wish to insert language into a trust that would call for the trust to become irrevocable upon one spouse's passing. For instance, if a spouse had the early onset of a debilitating disease that would diminish her mental capability later in life, the couple might add language to the trust that calls for the trust to become irrevocable upon the death of the spouse who does not have the debilitating disease. In this manner, an appointed successor trustee can manage the assets for the ailing spouse if she's unable to manage the trust.
Setting Up Revocable Trust
Because the revocable trust is designed to protect your assets from probate and to reduce the taxes paid by the estate to your heirs, the trust should be set up by an attorney with experience in revocable trusts. The attorney the couple chooses should be able to draft language within the trust to prepare for every possible contingency as to how the trust would be managed if one of the two spouses passes before the other.
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