REVOCABLE–VS- IRREVOCABLE TRUSTS: CAN THEY BE CHANGED IF THE MAKER CHANGES THEIR MIND?

By Fredrick P. Niemann, Esq. a New Jersey Estate Planning Attorney

As you may know, a revocable trust can be changed by its creator at any time.  The issue is whether the settlor of an irrevocable life insurance trust and a qualified personal residence trust can modify the trusts’ beneficiary designations.

It is well settled under New Jersey law that a settlor of an irrevocable trust generally has the power to modify the trust only “if and to the extent that by the terms of the trust he reserved such a power.” Coffey v. Coffey, 286 N.J. Super. 42, (App. Div. 1995) (quoting Restatement (Second) of Trusts § 331 (1959)). However, even in circumstances where the settlor did not reserve the right to modify a trust, the trust can be modified by agreement of the settlor and all beneficiaries. Indeed, the Restatement (Second) of Trusts § 337 states that “if all of the beneficiaries of a trust consent and none of them is under an incapacity, they can compel the termination of the trust.”
There is little or no law in New Jersey regarding a specific statute or case that deals with the modification of a life insurance trust or the modification of a qualified personal residence trust. That said, the general rules of trust modification should apply to these trusts and they should be modifiable if they meet the above criteria.

In sum, an irrevocable life insurance trust and a qualified personal residence trust will generally be modifiable by the settlor pursuant to the terms of the trust. Additionally, even absent an express provision permitting the trust to be modified, the trust can be modified with the consent of the settlor and all the beneficiaries.

Contact me personally today to discuss your New Jersey trust matter.  I am easy to talk to, very approachable and can offer you practical, legal ways to handle your concerns.  You can reach me toll free at (855) 376-5291 or e-mail me at fniemann@hnlawfirm.com/.

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