Generally, you change the name of a revocable trust through the formal amendment process. A trust can be amended to modify the substance of the trust (how it works, who it benefits, who serves as trustee) or it can be modified to change the formalities of the trust itself. It’s revocability for instance, the name of the trust certainly can be changed. The issue that is created whenever you change the name of a trust is that you also change the title on any assets that are pointing to the trust or already owned by the trust. Sometimes people will do an amendment and restatement to change the terms of the trust without renaming it. Ultimately, your overall objectives would dictate the appropriate strategy.
The short answer is yes, but it depends on the terms of the power of attorney and the terms of the revocable trust. If the revocable trust is still revocable, then its creator (grantor) can modify it whenever they want. If that person becomes incapacitated, then the terms of the trust are going dictate what happens from there. Generally, if a power of attorney allows the named agent or attorney in fact to modify a revocable trust, then that power would be given to them and they could modify or revoke the revocable trust. This sort of authority is, of course, risky since the modification of a revocable trust during your incapacity could have significant implications on your overall estate planning strategy and outcome.
Probably the most effective, and most certain, way to change a trust would be having an estate planning lawyer make the amendment, certainly if the lawyer is familiar with amending trusts, amending and restating trusts, if that’s a better option for you, but it’s not required that a lawyer amend your trust. As long as you’re comfortable with the logistics of doing that, generally you have to call into reference the existing trust and specify the clauses or singular clause that’s being modified and then execute it with the proper formalities, maintaining the same name that was already used for the trust. That is something that people can do on their own. It is a little bit complicated, but if you’re capable of figuring it out, you can certainly do that without a lawyer.
Generally, the answer to this question depends on timing. A beneficiary of a trust can be removed by the creator (grantor) of the trust if the trust is revocable. At any time, as long as the Grantor has capacity and the trust is revocable, the terms of the trust, including its beneficiaries or how the beneficiaries will receive a benefit, can be changed. This often happens because circumstances change over time, people come in and out of people’s lives. You especially see this with charitable beneficiaries, non-family or non-child beneficiaries, they can all be added or removed at any point. The point though is if the trust is revocable, then it can be modified and beneficiaries can be changed. If the trust is irrevocable, then generally it’s terms can’t be changed without either a trust protector (which usually still can’t change beneficiaries) or a court order, which would basically be a judge changing the terms of the trust.
The answer is yes, and that’s by operation of law. They can also become irrevocable by amendment, so a revocable trust could be amended to become irrevocable. Generally speaking, the only parties that have the ability to revoke or amend a trust are the trust’s creators. Once the creator or the grantor passes away, no one then can revoke the trust. No one can amend it, change it, or modify the terms.
Generally speaking, it will depend on the type of trust and the terms of the trust itself. Some trusts are individual trusts, and if one of the spouses passes away then their own trust will become irrevocable. If that is the case, the surviving spouse may still be the beneficiary of the deceased spouse’s trust, but they won’t be able to change it’s terms unless the trust itself otherwise allows it. This may be the case with tools like a power of appointment.
It’s common, though, for married couples to create a single trust for both of their benefits. These are called joint trusts, since the two spouses are joining in the trust’s creation and are only creating one trust instead of two.
Some joint trusts become irrevocable at the first death, while other joint trusts stay revocable until the second death. It’s just a matter of preference. There are pros and cons to both strategies. If the trust becomes irrevocable at the first death, then it can’t be changed by the survivor. It can also provide some creditor protection to the survivor if it is irrevocable. However, it doesn’t really allow for a change in circumstances to be taken into consideration. If the trust stays revocable until the second spouses passes, then the death of one spouse doesn’t really change the terms of the trust or how it works. The surviving spouse would be able to make any and all changes they believe are appropriate.
Paul Yokabitus is the CEO and Managing Partner of Cary Estate Planning, a Cary, NC, estate planning law firm. With years of experience in estate and elder law, he has zealously represented clients in various legal matters, including estate planning, guardianship, Medicaid planning, estate administration, and other cases.
Paul received his Juris Doctor from the Campbell University School of Law and is a North Carolina Bar Association member. He has received numerous accolades for his work, including being named among the “Best Attorney in Cary” in 2016 and 2017 by Cary News and Rising Star in 2020-2023 by Super Lawyers.