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Does an irrevocable trust mean it can never be re-written once the party dies?

Denver, CO |
Filed under: Irrevocable trust

My father had an attorney write an irrevocable trust appointing me as Trustee over my brother's home. In the Irrevocable Trust it clearly states that should my bother pass away the house goes to me. My brother has now appointed an attorney over his sub-trust and they notified me that I am no longer the Trustee. I pay my brother's house taxes and his home insurance. When my father had the Trust written, his attorney said that there was no way an irrevocable trust can be changed once he passed away.

Attorney Answers 4


All trusts become irrevocable once the settlor dies. You may want to review the trust with an attorney to understand your rights.

You can reach Harkess & Salter LLC at (303) 531-5380 or Stephen Harkess is an attorney licensed in the state and federal courts of Colorado. This answer is for general information only and does not create an attorney client relationship between Stephen Harkess or Harkess & Salter LLC and any person. You should schedule a consultation with an attorney to discuss the specifics of your legal issues.

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Mr. Harkess is correct. All trusts become irrevocable once someone dies. So, with the death of the grantor, then it can never be modified. I agree with Mr. Harkess to sit down with an attorney to review the trust with you and advise you of your rights. Most of the attorneys in the Denver area would offer either a free or discounted rate initial consultations, depending on the length of the meeting.

The information provided in this answer does not create an attorney-client relationship. If you are interested in his legal services, feel free to call Chris at (303) 409-7635 at his law office in the Denver Tech Center. All initial consultations are free of charge.

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You need to consult with a local attorney to see if your brother had a power to change the trustee under the terms of the trust. If he didnt, he cannot unilaterally do what he did. Consult an estate attorney to determine how to respond and proceed.

The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or given me confidential information by posting on this public forum, and my answer on this public forum does not constitute attorney-client advice. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein. While I am licensed to practice in New York and California, I do not actively practice in New York. Regardless, nothing said should be deemed an opinion of law of any state. All readers need to do their own research or pay an attorney for a legal opinion if one is necessary or desired.

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A couple points. An irrevocable can be changed through a court process called decanting. However, to accomplish this the beneficiaries and trustees would have to be in agreement and there must usually be a compelling reason to change the trust at the order of a judge. With that being said in response to your question. I think this issue lies with a clause in the trust agreement called a "power of appointment" which is a limited right to make changes to something.....even in an irrevocable trust....the IRS in fact issued pronouncements where it is permissible to do of those most common things is changes to a long as no benefit enuresis to the Grantor of the trust. So....cannot tell you for sure without actually seeing the trust agreement but is likely to be the valid reason fir the change instead of actually ignoring something that is not allowable under any circumstance.....the devil is in the details on this one.

My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained.

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