Terminating an irrevocable trust is an involved, formal process. Usually, all beneficiaries must consent to termination. In some cases, it may also require court approval depending on the type of trust, whether there are minor beneficiaries and the legal jurisdiction of the trust.
While it is true that the Settlor of an irrevocable trust cannot make changes to or terminate the trust once the trust is established, it may be possible for the beneficiaries, Trustee, or a court to modify or terminate an irrevocable trust in California.
With an irrevocable trust, the transfer of assets is permanent. So once the trust is created and assets are transferred, they generally can't be taken out again. You can still act as the trustee but you'd be limited to withdrawing money only on an as-needed basis to cover necessary expenses.
The irrevocable trust trustees are entrusted with extensive powers and responsibilities to safeguard and manage the assets held within the trust. These powers may include the ability to invest trust assets, make distributions to beneficiaries, and even terminate the trust under certain circumstances.
A trustee can sell property in an irrevocable trust according to the terms provided in the documents used in the creation of the irrevocable trust. Property held in an irrevocable trust is not included in an estate, which means you don't have to pay estate taxes for that property.
And so the trustee of a trust, whether it's revocable or irrevocable, can use trust funds to pay for nursing home care for a senior. Now, that doesn't mean that the nursing home itself can access the funds that are held in an irrevocable trust. It's always the responsibility of the trustee to manage those assets.
In an irrevocable trust, the trustee holds legal title to the property, bearing the fiduciary responsibility to manage it in the best interest of the beneficiaries.
There are some obvious downsides to an Irrevocable Trust. The main one is the fact that you can't change an Irrevocable Trust once it's finalized.
Ultimately, trustees can only withdraw money from a trust account for specific expenses within certain limitations. Their duties require them to comply with the grantor's wishes. If they breach their fiduciary duties, they will be removed as the trustee and face a surcharge for compensatory damages.
Generally speaking, you are not able to change the beneficiary on an irrevocable trust. In some unique situations, it may be possible but will ultimately prove to be extremely difficult.
Income Taxes
In the event that an irrevocable non-grantor trust is terminated, the income that the assets have generated will presumably be distributed to the beneficiaries. It will be their responsibility to pay the taxes on the money.
Generally, no you cannot sue a trust directly. Again, that's because a trust is a legal entity, not a person. It's possible, however, to sue the trustee of a trust whether that trust is revocable or irrevocable. As mentioned, in the case of a creditor lawsuit the trustee of a revocable living trust could be sued.
Generally, no, a grantor cannot withdraw money from an irrevocable trust. Remember that “irrevocable” means unchangeable – neither the grantor or trustee can withdraw. The grantor is essentially given those assets to away to the irrevocable trust.
Specifically, Section 411(a) allows an action to modify a trust to be brought by a Trustee, a beneficiary, or the settlor if the settlor and all beneficiaries consent. If all parties consent, modification if possible even if that modification goes against the trust purpose.
When the grantor of an irrevocable trust dies, the trustee or the person named successor trustee assumes control of the trust. The new trustee distributes the assets placed in the trust according to the bylaws of the trust.
Rul. 2023-2 has made a major change in the way assets are treated within Irrevocable Trusts, namely concerning the provision for step-up in basis. The rule states that unless the asset in question is included in the taxable estate of the Grantor upon their death, then that asset will not receive the step-up in basis.
They can be sold, but these transactions are typically more complicated than traditional home sales. Selling a home in California will take time. Even if you have a motivated buyer, the transaction still might not be completed for several weeks or months after an offer has been accepted.
Instead, in most cases, an irrevocable trust can only be dissolved by court order. The details of dissolving an irrevocable trust differ widely between states and jurisdictions. However, typically you will need to get approval from the trust's beneficiaries and potentially its trustees as well.
Putting a house in an irrevocable trust protects it from creditors who might come calling after your passing – or even before. It's removed from your estate and is no longer subject to credit judgments. Similarly, you can even protect your assets from your family.
Also, an irrevocable trust's terms cannot be changed, and the trust cannot be canceled without the approval of the grantor and the beneficiaries, or a court order. Because the assets within the trust are no longer the property of the trustor, a creditor cannot come after them to satisfy debts of the trustor.
Once assets are placed in an irrevocable trust, you no longer have control over them, and they won't be included in your Medicaid eligibility determination after five years. It's important to plan well in advance, as the 5-year look-back rule still applies.
A transfer into an irrevocable trust can be considered a gift for Medicaid eligibility purposes. This gift status/condition works as a significant negative for people applying for Medicaid assistance. In particular, both “penalty period” and 60 months “look-back period” rules apply.