Can a Trust be Changed After Death – Does a Trust Become Irrevocable

Can a trust be changed after death? Most of the time, the answer would be no. Even if a trust is revocable and can be changed by the grantor during their lifetime, the trust becomes irrevocable and therefore unchangeable after the person who made it dies.

Typically, a trust cannot be changed after death.

A trustee of a trust does not have the power to change the trust, either before or after death.

Even though it’s not possible for a trustee to change the trust or remove a beneficiary after the death of the grantee, the trustee may still be able to change beneficiaries of the trust after the grantor’s death if the trust says they can. It is possible in a trust to give someone a power to remove a beneficiary. This could be done by granting the trustee a power of attorney with a gift rider and an option to exercise a power of appointment to appoint a new beneficiary and remove the old beneficiary.

The law does not give the trustee an automatic power to have a beneficiary removed from a trust. However, if a trust grants a trustee an option to exercise a power of attorney with a gift rider and the power of appointment to have a beneficiary appointed or have a beneficiary removed if the appropriate language is contained in the trust, then it’s possible.

This power of appointment with a gift rider is not a common thing to see in New York. We sometimes see it in a trust when a spouse gives the other spouse the power of appointment in order to keep their joint children in check. We also see situations where a stepmother or stepfather wants to have the stepchildren removed from the trust, in order to favor their own children.

New York EPTL 7-1.9 states that upon the written consent, acknowledged or proved in the manner required by the laws of this state for the recording of a conveyance of real property, of all the persons beneficially interested in a trust of property, heretofore or hereafter created, the creater  of such trust may revoke or amend the whole or any part thereof by an instrument in writing acknowledged or proved in like manner, and thereupon the estate of the trustee ceases with respect to any part of such trust property, the disposition of which has been revoked.  If the conveyance or other instrument creating a trust of property was recorded in the office of the clerk or register of any county of this state, the instrument revoking or amending such trust, together with the consents thereto, shall be recorded in the same office of every county in which the conveyance or other instrument creating such trust was recorded.

New York EPTL 7-1.16 states that a lifetime trust shall be irrevocable unless it expressly provides that it is revocable.  In addition to the method set forth in 7-1.17, a revocable lifetime trust can be revoked or amended by an express direction in the creator’s will which specifically refers to such lifetime trust or a particular provision thereof.

Even if the trust could be changed, the grantor would not be able to change it because the grantor is now dead. But there are some things that can possibly be done. If you would like to schedule a consultation with New York wills, trusts and estates attorney Albert Goodwin, you can do so by calling 212-233-1233 or 212-233-1233.