Does a Revocable Trust Become
Irrevocable Upon Death?

Mark Pierce
Mark Pierce is the founding partner of Wyoming Trust and LLC Attorney. He is an estate planning and small business structuring expert with over 40 years of experience.

Does a revocable trust become irrevocable upon death?

Two broad categories define a trust: revocable and irrevocable. A revocable trust requires the grantor to designate another person or corporate entity to administer the trust. You can modify the terms of a revocable trust. On the other hand, the grantor cannot modify the terms of an irrevocable trust without the permission given by the beneficiary or beneficiaries. One common question concerns the relationship between a revocable and irrevocable trust.

How Can a Revocable Trust Turn Irrevocable?

There are two common scenarios in which a revocable trust becomes irrevocable.

Death of the Grantor

A revocable trust turns into an irrevocable trust when the grantor of the trust dies. Typically, the grantor is also the trustee and the first beneficiary of the trust. Once the grantor dies, the terms written into a revocable trust cannot be modified in any way, nor can anyone add or remove assets. After the grantor of a revocable trust dies, the new irrevocable trust requires an Employer Identification Number (EIN). The trust becomes its own entity, which means it needs to obtain an EIN for filing tax returns.

Grantor Becomes Incapacitated

The second common scenario when a revocable trust becomes irrevocable is when the grantor becomes incapacitated and can no longer make decisions regarding the operation of the trust. A licensed healthcare provider must conduct a thorough medical review to confirm the incapacitation diagnosis. After signing a document that confirms the grantor is incapacitated, a successor trustee is named to oversee the handling of the trust. The trust is considered irrevocable only during the time the grantor is designated as incapacitated. If the grantor recovers enough to regain capacity, then the trust once again becomes revocable.

What Happens When There Are Two Grantors?

When you create a trust, you are the person who provides the assets that fund the trust. Two spouses have the right to set up a trust as co-grantors. In this case, the trust is named a joint trust

How Does an Irrevocable Trust Turn Irrevocable When There Are Two Grantors?

When a revocable trust has one grantor, the trust turns irrevocable when the grantor dies or becomes incapacitated. A legal issue arises with a joint trust that determines whether a revocable trust becomes an irrevocable trust. In most cases involving joint trusts, one of the co-grantors dies before the second co-grantor. When one spouse dies before the second spouse, the question is, does the revocable trust turn irrevocable?

The general rule is both grantors must die for a revocable trust to become irrevocable. However, there are legal ways to change the general rule for co-grantors. This means the parties that established the revocable trust have the legal power to set the rules for the trust. First, an estate planning lawyer can add language to change the rule that both spouses must die for a trust to turn irrevocable. Second, the trust remains, but a successor trustee assumes the legal responsibility for making decisions involving the trust.

Consult with a Family Law Attorney

Although it appears clear that when a grantor dies, a revocable trust becomes an irrevocable trust, the same cannot be said if the grantor becomes incapacitated. The amount of time a grantor remains incapacitated is often not easy to predict. Another issue arises when two grantors establish a revocable trust. What happens to the trust after one of the grantors dies will depend on the legal language written into the terms of the trust.

If you are a beneficiary of a revocable trust and the grantor recently died, you should contact the Cloud Peak Law Group to determine whether the grantor's death means the terms of the trust can no longer be modified. If you are a co-grantor in a joint trust and your spouse recently died, contact us to determine whether the death of your spouse means the trust has become irrevocable.