Is a Testamentary Trust Revocable or Irrevocable?

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Revocable trusts are living trusts created by someone known as a grantor or trustor who has the right to revoke the trust at any time. Irrevocable trusts are trusts in which the trustor cannot change or revoke the trust. Testamentary trusts are classified as irrevocable because testamentary trusts only come into effect after the trustor dies.

Establishing Testamentary Trust

Trustors create testamentary trusts as part of a will. The will names a trustee, lists the names of people or organizations that are beneficiaries of the trust and details the assets that must go to each beneficiary. Wills must pass through probate and the assets listed in the trust only technically become part of the trust after the probate process. At that point, the trustee must disburse the assets in accordance with the trustor's wishes.

Revoking Trust

A trustor can revoke a trust by changing the will or the trust part of the will before death. However, the ability to revoke the trust does not mean make it a "revocable trust," because in the legal sense "revocable" trusts are trusts that a trustor can revoke after the trusts take effect whereas obviously a trustor who has died already cannot revoke an in effect testamentary trust. When a trustor elects to change a testamentary trust, most states require the trustor to record a copy of the new will and trust with the state.

Probate

The assets listed in a testamentary trust only go to the named beneficiaries if the probate process leads to the particular assets being placed in the trust. Interested parties, which are relatives, friends and creditors of the deceased have the legal right to challenge a will and the testamentary trust during probate. The probate process may uncover another later version of the will that proves valid in which case the testamentary trust that forms part of the earlier will actually never comes into existence.

Other Considerations

When a trustor with a living trust dies, the trustee of the trust can begin to disburse trust assets without having to go through probate. Probate hearings are often lengthy and expensive so people who establish living trusts enable their heirs to pay less and have access to funds more quickly. The avoidance of probate also means that interested parties cannot contest living trusts. Revocable and irrevocable trusts enable trustor's to pass assets to heirs much more efficiently than testamentary trusts.

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