Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Oct 21, 2010

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Many people choose to create a living trust (or inter vivos trust) as a part of financial and estate planning, while taking care of the disposal of property to their beneficiaries. A living trust is, in many cases, more popular than a will ,because while it may serve many of the same goals as a will, it provides a great deal of extra advantages.

Issues concerning termination of a living trust are usually not among the first considerations, but may assume great importance if significant changes occur.

Duration or Termination of a Living Trust

A living trust can be put into effect during your lifetime rather than after you pass away, and it avoids many of the complications that come with a will such as probate court filing or loss of privacy. The main advantage to designing a living trust, though, is in its flexibility for managing assets while simultaneously shielding inheritances. This is why living trusts are called “Senators Trusts.” Politicians had a hand in creating and protecting their own assets through the first Living Trusts.

Types of Living Trusts

There are two types of living trusts that a person can create – a revocable trust or an irrevocable trust. One reason some people end up trying to revoke an inter vivos trust is because the purpose of the trust has changed, or they may have misunderstood the benefits.

  • Most people file revocable trusts, finding they are the preferred vehicle for passing property after death while retaining maximum control over the trust assets in their lifetime;

  • An irrevocable trust has significant advantages in shielding taxes and assets from creditors over a revocable one, so it’s not entirely rare for people to have one… if the Trustor knows for a fact that they need irrevocability for asset protection. This relative certainty is usually based on several consultations with experts.

Revoking an Irrevocable Trust

While irrevocable trusts are less common,  if you do have an irrevocable trust, you’re not completely out of luck if you need to make a change. It is possible to alter or revoke an irrevocable trust, but doing so requires professional advice and guidance.

Courts have granted relief from irrevocability on at least two grounds: (a) misunderstanding of technicalities by the settlor/trustor; (b) so-called ‘scriveners errors,’ where technical errors affect the use of assets.

Revoking a Revocable Trust

Revoking a revocable trust on the other hand, is obviously less onerous than dealing with an irrevocable one. As a general matter, if possible, it’s advised to modify the trust rather than revoke it, but there are times when revoking it is the only advised course. Revoking a living trust makes sense when, for example, the change required is so major that the process of making the alteration would be more complicated than just starting a new one. Or perhaps you’ve decided to write a will instead. Maybe you’ve gotten divorced and want to create a living trust independently from your ex-spouse.

Whatever the reason, revoking a living trust is a pretty simple procedure.

  • In order to revoke a living trust, you must be the grantor in charge of the trust. In most cases, you will be, but some people appoint a separate grantor to handle their trusts, and if this is the case, then that person will have to do the work for you.

  • Once the grantor is established, he or she has to complete two procedures in order to revoke the trust. The first is that all assets listed in the trust must be re-established (re-titled or even deeded) as the property of the individual. In other words, any property stated in the trust is technically under property of the trust and not the person; you must therefore transfer it from the trust and back to your own ownership (funding the trust is the reverse procedure). This is not always easily done, and an expert should assist you in defunding the trust.

  • Once this is done, the second step is the filing of a document called Revocation of Living Trust. This document is available through your local court, or from any lawyer or financial advisor who works with living trusts. You’ll be required to fill out the document with all relevant information, and to have it notarized by an notary public, before filing it with your local court.

Conclusion

Living Trusts are wonderful for what they do: but it may be fair to say that the many people who have one do not need one for the reason they first suspect: they simply do not have enough in asset exposure. On the other hand, few instruments can be as helpful in protecting assets from the costs of aging, such as prolonged nursing home care. Only a financial planner rather than a friend or salesperson should counsel you into acquiring a Living Trust. This is even more vital when considering modifying or revoking either type of living trust.