Table of Contents
When Does a Revocable Trust Become Irrevocable in California?
Key Differences Between Revocable and Irrevocable Trusts
Common Benefits of a Revocable Trust
How The Grossman Law Firm Can Help
Key Takeaways
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A revocable trust allows the settlor to make changes or revoke the trust during their lifetime.
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A revocable trust typically becomes irrevocable upon the settlor’s death or incapacity.
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Understanding the difference between revocable and irrevocable trusts helps beneficiaries and heirs protect their rights.
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In California, once a trust becomes irrevocable, beneficiaries may be entitled to a copy of the trust and financial information.
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The Grossman Law Firm assists clients throughout California in navigating trust administration and litigation.
What Is a Revocable Trust?
A revocable trust (also called a living trust or inter vivos trust) is a legal instrument used to manage assets during a person’s lifetime and distribute them upon death. The person who creates the trust—known as the settlor—typically acts as the initial trustee, retaining complete control over the trust’s assets.
During the settlor’s lifetime, they can:
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Add or remove property
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Modify trust terms
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Change beneficiaries
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Revoke the trust entirely
Revocable trusts are often used to avoid probate, maintain privacy, and provide incapacity planning by naming a successor trustee. However, assets in a revocable trust remain part of the settlor’s estate and are not protected from creditors or estate taxes.
When Does a Revocable Trust Become Irrevocable in California?
In California, a revocable trust typically becomes irrevocable under the following circumstances:
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Upon the Settlor’s Death
This is the most common point at which a revocable trust becomes irrevocable. Once the settlor dies, the trust can no longer be changed or revoked. The successor trustee is then responsible for administering and distributing the trust assets according to its terms. -
Upon the Settlor’s Incapacity
Some revocable trusts contain language that makes them irrevocable if the settlor becomes mentally incapacitated. The language must be reviewed carefully. In other cases, the trust remains revocable until death, even if the settlor is no longer able to manage it. -
By Terms of the Trust Instrument
Certain trusts are drafted to become irrevocable upon a specific event, such as a diagnosis or a designated date. The exact terms depend on how the trust was written.
Once the trust becomes irrevocable, beneficiaries gain enforceable rights. Under California Probate Code §16061.7, the trustee must notify beneficiaries that the trust has become irrevocable and provide a copy of the trust upon request.
Key Differences Between Revocable and Irrevocable Trusts
Understanding when a trust becomes irrevocable starts with knowing the major differences between the two:
| Feature | Revocable Trust | Irrevocable Trust |
|---|---|---|
| Control | Settlor can change terms anytime | The settlor cannot make changes once created |
| Asset Protection | No protection from creditors | Assets are generally shielded from creditors |
| Estate Inclusion | Assets remain part of settlor’s estate | Assets removed from settlor’s estate |
| Tax Planning | Limited benefits | May provide estate or gift tax advantages |
| Medicaid Planning | Not applicable | Sometimes used in Medicaid eligibility (not relevant in CA probate litigation) |
While some individuals intentionally create irrevocable trusts for tax or asset protection purposes, most revocable trusts become irrevocable only upon the death or incapacity of the grantor.
Common Benefits of a Revocable Trust
Revocable trusts offer several advantages for individuals who want to maintain control of their assets while simplifying estate administration later.
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Flexibility
Settlors can change trust terms, update beneficiaries, or revoke the trust entirely. -
Avoiding Probate
Assets in a revocable trust are not subject to California’s probate court system, saving time and costs for heirs. -
Privacy
Unlike wills, which become public during probate, revocable trusts remain private. -
Incapacity Planning
If the settlor becomes incapacitated, a successor trustee can step in to manage assets without court intervention.
Keep in mind that once the settlor passes away, the trust becomes irrevocable, and successor trustees must act in the best interest of the beneficiaries while complying with all legal duties.
Related Resources
- Removing a Trustee in California
- How to Get a Copy of the Trust After a Death in California
- 20 Ways Your Trustee Can Be Breaching Their Fiduciary Duties
- Overview of California Trust Litigation
FAQ
Does a revocable trust always become irrevocable upon the settlor’s death?
Yes, in most cases. Unless the trust says otherwise, a revocable trust becomes irrevocable upon the settlor’s death.
Can a trust be irrevocable while the settlor is still alive?
Yes, if the settlor chooses to create an irrevocable trust from the beginning or includes terms that make the trust irrevocable upon incapacity or another event.
What rights do beneficiaries have when a trust becomes irrevocable?
Once a trust becomes irrevocable, beneficiaries are entitled to receive notice, a copy of the trust, and regular accountings under California law. They may also challenge the trustee if fiduciary duties are breached.
How The Grossman Law Firm Can Help
At The Grossman Law Firm, we assist beneficiaries and heirs throughout California in enforcing their rights in probate and trust litigation.
If you’re unsure whether a trust is revocable or irrevocable—or if you’re dealing with a trustee who isn’t following the law—we can help you obtain answers and take action.
Call (888) 443-6590 or fill out our Get Help Now form.
Our Intake Specialists can evaluate your case at no cost to you.
Qualifying cases will be scheduled for a Free Phone Consultation with Attorney Scott Grossman.
Originally Published Mar 4, 2024