Changing an Irrevocable Trust in North Carolina

Unanticipated changes in the law or your family circumstances can make a previously created and irrevocable trust no longer sufficient for your family’s needs or frustrate the trustor’s original intent in creating the trust. In North Carolina, there are generally three ways to change an irrevocable trust: Court Order, Decanting, or Termination.

Judicial Amendment

Judicial trust modification generally requires a court proceeding in which the judge will review the circumstances surrounding the beneficiary(ies) of the trust and whether a modification is in their best interest, while also remaining consistent with the material purpose of the trust. If the trust creator is still alive, judicial modification may not be needed.

Decanting

Decanting is essentially allowing the trustee of an irrevocable trust to change the unfavorable terms by pouring the assets into a new trust with more favorable terms. Like decanting a bottle of wine, you swapping the vessel, not the substance itself.  This is not to be taken lightly, however. You cannot just undermine the entire point of the trust because it’s terms are no longer convenient. For instance, a future benefit in an irrevocable trust cannot be accelerated by decanting to a new trust – i.e., if a beneficiary is 25 and is not to receive a benefit under the original trust until age 30, the trustee cannot get around that requirement by decanting to a new trust (accelerating a future interest). The primary purpose of decanting is to allow for changes in tax or special needs provisions, not to change the way the trust assets are distributed generally.

Termination

If the trust balance drops below $50,000, North Carolina law allows the trustee to terminate the trust and distribute the remainder to the qualified beneficiaries. The legislature has determined that amounts below $50,000 may be uneconomic to administer and thus the burden or expense would undermine the purpose of the trust.