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Irrevocable Trusts: Never Totally Irrevocable

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Never totally irrevocable

People may believe estate planning should be a once-and-done affair. But things tend to change over time, and estate plans may need to change, too. Even plans that say they are irrevocable are never totally irrevocable.

Change is the norm these days. The just-passed SECURE Act brought a slew of changes and new strategies to consider. A few years before that, the estate tax exemption was temporarily increased to $11 million and made many estate tax-avoidance strategies unnecessary. And before that, ABLE accounts gave people with disabilities opportunities to accumulate funds.

Making Adjustments

As related laws change or family circumstances and dynamics change, periodic document reviews are necessary. Most estate planning documents can be revoked or amended so long as the creator is alive and has sufficient understanding of the process. Changing “irrevocable” documents is fairly common; irrevocable trusts can be modified or even terminated. Trustees of these trusts should be mindful that a faulty trust can usually be fixed – even if, by its terms, it says it can’t be. It could be argued that trustees have an affirmative obligation to take action if a beneficiary can benefit from a change.

Some good reasons to change irrevocable trusts include:

1) Updates to remove provisions once designed to save taxes but now don’t.

2) Add successor trustees or mechanisms to appoint additional trustees without court proceedings.

3) Add or change a trust to qualify as a special needs trust if a beneficiary is or could become disabled.

Court Proceedings Seeking Improvements

The old-fashioned way of fixing an out-dated trust is to ask the court for permission. If there’s a good reason, a judge can approve the change.

Specific laws in Arizona specifically authorize modification or termination by court action. Only certain circumstances qualify. The reasons include:

Beneficiaries are all in agreement and consent and the change is not inconsistent with any material purpose of the trust. (A.R.S. § 14-10411)

Circumstances have changed so drastically that modification or termination would further the purpose of the trust. (A.R.S. § 14-10412)

Administration costs more than makes sense. (A.R.S. § 14-10414)

Trustor made a mistake of fact or law. (A.R.S. § 14-10415)

Change would achieve the trustor’s tax goals. (A.R.S. § 14-10416).

Court modifications have associate costs such as filing fees and attorney fees, and can take time to sort out among beneficiaries. But it can be worth the effort if the adjustment makes the trust more efficient, fulfills the trustor’s intent, and creates a better situation for beneficiaries.

There may be other options, though.

The Power of ‘Decanting’

If the trustee has the ability to distribute the income and principal of the trust at his or her discretion, the trustee may distribute the trust to a new, better trust. This kind of change is called “decanting.” There are rules that must be followed, and in Arizona, those are found in A.R.S. § 14-10819. A decanted trust may be submitted to a judge for approval, but it’s not necessary, and in many cases is a cost-efficient way to fix flaws.

An irrevocable trust is never totally irrevocable, so don’t let an old or flawed one sit and gather dust. Review them as laws and circumstances change and consider whether a spiff-up might make sense.

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Robert B. Fleming


Robert Fleming is a Fellow of both the American College of Trust and Estate Counsel and the National Academy of Elder Law Attorneys. He has been certified as a Specialist in Estate and Trust Law by the State Bar of Arizona‘s Board of Legal Specialization, and he is also a Certified Elder Law Attorney by the National Elder Law Foundation. Robert has a long history of involvement in local, state and national organizations. He is most proud of his instrumental involvement in the Special Needs Alliance, the premier national organization for lawyers dealing with special needs trusts and planning.

Robert has two adult children, two young grandchildren and a wife of over fifty years. He is devoted to all of them. He is also very fond of Rosalind Franklin (his office companion corgi), and his homebound cat Muninn. He just likes people, their pets and their stories.

Elizabeth N.R. Friman


Elizabeth Noble Rollings Friman is a principal and licensed fiduciary at Fleming & Curti, PLC. Elizabeth enjoys estate planning and helping families navigate trust and probate administrations. She is passionate about the fiduciary work that she performs as a trustee, personal representative, guardian, and conservator. Elizabeth works with CPAs, financial professionals, case managers, and medical providers to tailor solutions to complex family challenges. Elizabeth is often called upon to serve as a neutral party so that families can avoid protracted legal conflict. Elizabeth relies on the expertise of her team at Fleming & Curti, and as the Firm approaches its third decade, she is proud of the culture of care and consideration that the Firm embodies. Finding workable solutions to sensitive and complex family challenges is something that Elizabeth and the Fleming & Curti team do well.

Amy F. Matheson


Amy Farrell Matheson has worked as an attorney at Fleming & Curti since 2006. A member of the Southern Arizona Estate Planning Council, she is primarily responsible for estate planning and probate matters.

Amy graduated from Wellesley College with a double major in political science and English. She is an honors graduate of Suffolk University Law School and has been admitted to practice in Arizona, Massachusetts, New York, and the District of Columbia.

Prior to joining Fleming & Curti, Amy worked for American Public Television in Boston, and with the international trade group at White & Case, LLP, in Washington, D.C.

Amy’s husband, Tom, is an astronomer at NOIRLab and the Head of Time Domain Services, whose main project is ANTARES. Sadly, this does not involve actual time travel. Amy’s twin daughters are high school students; Finn, her Irish Red and White Setter, remains a puppy at heart.

Famous people's wills

Matthew M. Mansour


Matthew is a law clerk who recently earned his law degree from the University of Arizona James E. Rogers College of Law. His undergraduate degree is in psychology from the University of California, Santa Barbara. Matthew has had a passion for advocacy in the Tucson community since his time as a law student representative in the Workers’ Rights Clinic. He also has worked in both the Pima County Attorney’s Office and the Pima County Public Defender’s Office. He enjoys playing basketball, caring for his cat, and listening to audiobooks narrated by the authors.