Sherlock Holmes and the Problem of the Dead Hand: The Modification and Termination of 'Irrevocable' Trusts

67 Pages Posted: 22 May 2015

See all articles by Richard C. Ausness

Richard C. Ausness

University of Kentucky - College of Law

Date Written: May 15, 2015

Abstract

This Article is about the modification and termination of so-called “irrevocable” trusts. A trust may be made irrevocable at the time of its creation or it may become so at a later time. A testamentary trust is one that is embodied in a will and becomes effective at the testator’s death. Since the testator will be dead by the time the trust becomes effective, he will not be in a position to modify or revoke it. For the same reason, a revocable trust will become irrevocable when the settlor dies or when the power to revoke is released. Finally, an inter vivos trust may be irrevocable when it is first created if the settlor disclaims the right to revoke or modify the trust. Although these types of trusts are irrevocable as far as the settlor is concerned, they can sometimes be modified or terminated by others. This Article will examine the various ways in which irrevocable trusts can be modified or terminated. It will also consider the potential conflicts that may arise when beneficiaries desire to terminate the trust prematurely or change its terms in some significant way.

Keywords: Trust and Estates, trusts, trust management, legal status, fiduciary duty, United States of America, fiduciary, dead hand, irrevocable trust, will, testator, death, revocable, modification, inter vivos, terminate

Suggested Citation

Ausness, Richard C., Sherlock Holmes and the Problem of the Dead Hand: The Modification and Termination of 'Irrevocable' Trusts (May 15, 2015). Quinnipiac Probate Law Journal, Vol. 28, No. 3, 2015, Available at SSRN: https://ssrn.com/abstract=2608902

Richard C. Ausness (Contact Author)

University of Kentucky - College of Law ( email )

620 S. Limestone Street
Lexington, KY 40506-0048
United States

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