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Revocable Trusts: An Overview

We received the following question from a client: When my brother passed away, he left money in a revocable trust for my children, but they could only get that money if they visited with the elephants in Tanzania. Why can't my kids put that money toward something they could use, like paying off their mortgages? The trustee says she has no choice, and she has to follow my brother’s instructions.

The trustee is right. Once the person who created a revocable trust dies, the trust becomes “irrevocable,” unchangeable. The law says that the money was the brother's to do with as he saw fit as a general rule. The trustee is duty-bound to follow his wishes, with only a few exceptions that wouldn't apply in this case.

What is a Revocable Trust?

A revocable trust is a trust whereby provisions can be altered or canceled dependent on the grantor or the originator of the trust. During the life of the trust, income earned is distributed to the grantor, and only after death does property transfer to the beneficiaries of the trust.

A revocable trust is helpful since it provides flexibility and income to the living grantor (also called the trustor). Provisions of the trust can be changed, and the estate will be transferred to the beneficiaries upon the trustor's death.

Some states permit beneficiaries to go to court and try to get a provision like that changed. But they can only do this if all beneficiaries agree unanimously.

The children might also have to persuade the judge that what they want instead would be consistent with the most crucial purpose the brother was trying to fulfill. I doubt that the children would succeed. The elephants evidently made a big impression on the brother, and his essential purpose was to share that experience with the children.

Hopefully the children will enjoy the trip. We would!

If you have questions about different legal documents that make up an estate plan or how your estate plan will impact your beneficiaries we can help. Please contact us today at (408) 371-6000 to schedule a free consultation. 

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