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Blogs from July, 2023


What Happens to an Irrevocable Trust When the Grantor Dies?

It’s no secret that estate planning can be a confusing area of U.S. law. From choosing a will to tax planning, preparing for and understanding the probate process can be overwhelming for many Texas families.

While it can be easy to assume that trusts are only necessary for wealthy or influential people, this isn’t true. A trust is an invaluable mechanism when it comes to Texas estate planning. It’s important to understand the types of trusts available to make the best decisions for yourself, your estate, and your loved ones during the estate planning process.

What Is an Irrevocable Trust?

An irrevocable trust is a type of trust that cannot be changed, modified, or revoked without the permission of the beneficiary or beneficiaries. This takes effect as soon as the trust is established by the “grantor” or creator of the trust. In other words, once the grantor transfers assets into an irrevocable trust, they effectively give up any right of ownership to those assets and the trust itself.

How Irrevocable Trusts Work in Texas

An irrevocable trust functions by transferring assets from the grantor's estate into a new legal entity (the trust). The trust then becomes the legal owner of the assets. The grantor will then appoint a trustee, who will have the fiduciary duty to manage the trust assets in the best interest of the beneficiaries as outlined in the terms of the trust.

Role of Grantors, Trustees, & Beneficiaries in Texas Trusts

Executors and trustees play different roles in estate planning that rarely overlap. While an executor is typically appointed in a will to manage the decedent's estate after their death, a trustee manages assets placed in a trust for the beneficiaries.

Can an irrevocable trust be modified or revoked after the grantor passes away? Understanding the roles of the executor, trustee, and beneficiaries is vital in comprehending the post-death process. Consider this brief overview of the various roles involved in irrevocable trusts:

The Grantor

The grantor of an irrevocable trust, also called the trustor or settlor, is the person who creates the trust. They establish the terms of the trust, including who the beneficiaries are and what assets are included.

In irrevocable trusts, grantors transfer assets and relinquish all rights of ownership to those assets, meaning the grantor no longer has control over them and cannot make any changes or amendments to the terms of the trust without the permission of the beneficiaries.

After the grantor's death, the assets in the trust are managed or distributed by the trustee according to the terms set out by the grantor in the trust document.

The Trustee

In an irrevocable trust, the trustee plays a vital role in managing and administering the trust assets to benefit the beneficiaries. The trustee is a fiduciary, meaning they are legally obligated to act in the beneficiaries' best interests and uphold the trust's terms and intentions.

Generally, the trustee’s responsibilities include asset management, distributing trust assets appropriately, keeping detailed and accurate records of all accounts and transactions, ensuring compliance with applicable tax laws, making investment decisions to preserve and grow the trust’s assets, treating all beneficiaries fairly and impartially, and complying with all state and federal laws to avoid any conflicts of interest.

When the grantor of the irrevocable trust passes away, the role of the trustee becomes even more crucial. Following the grantor’s death, their legal obligations can expand to include additional steps, such as:

  • Notifying beneficiaries of the grantor's death and their status as beneficiaries
  • Gathering necessary documents, such as the grantor's death certificate and any probate documents
  • Settling the grantor's outstanding debts and taxes before distributing assets to beneficiaries
  • Ensuring that the trust assets are appropriately titled and transferred to the intended beneficiaries

It's critical for trustees to seek sound counsel from a Texas trust attorney if they’re uncertain about any aspect of their duties after the grantor's death. The proper administration of Texas trusts is essential to protect the interests of the beneficiaries and fulfill the grantor’s wishes after they pass away.

The Beneficiary

A beneficiary in an irrevocable trust is the person or entity set to receive the benefits or assets from the trust. These benefits can include income from the trust's assets, property, or other forms of wealth as outlined in the trust agreement. Generally, the role of “beneficiary” includes:

  • Receiving distributions –The primary role of a beneficiary is to receive distributions from the trust as specified in the trust agreement. This may include regular income payments, specific assets, or lump-sum distribution.
  • Having the right to information –Beneficiaries have the right to be informed about the trust and its administration. They can request information on the trust's assets, terms, and how the trustee is managing the trust.
  • Enforcing the trust –If the trustee does not manage the trust properly or fails to make distributions as the trust document directs, beneficiaries have the right to take legal action to enforce the terms of the trust.

Irrevocable Trusts: What Happens When the Grantor Dies?

Upon the grantor's death, the trustee continues managing the irrevocable trust or distributes the assets according to the trust’s terms. Unlike a will, an irrevocable trust avoids probate, often expediting the asset distribution process and making it an appealing option for some families.

When the grantor of an irrevocable trust passes away, the following steps and procedures are generally followed:

  • Notification of death. The executor or a designated representative is responsible for notifying the trustee and beneficiaries about the grantor's passing.
  • Obtaining the death certificate. The trustee will require a certified copy of the grantor's death certificate to prove their passing.
  • Trust administration. The trust document outlines the specific instructions for trust administration. The trustee will take charge of managing and distributing the trust assets according to the terms outlined in the trust agreement.
  • Inventory of trust assets. The trustee will conduct an inventory of all assets held within the trust, including real estate, investments, bank accounts, and personal property.
  • Valuation of assets. The trustee may find it necessary to obtain professional appraisals to determine the fair market value of certain assets, especially if the trust requires equal distributions to beneficiaries.
  • Notifying creditors. The trustee should publish a notice to potential creditors, allowing them a specific period to make claims against the trust for any outstanding debts owed by the grantor.
  • Settling taxes and debts. The trustee must settle any outstanding debts, including taxes owed by the grantor or the trust, before distributing assets to beneficiaries.
  • Asset distribution. Once all debts and taxes are settled, the trustee will distribute the trust assets to the beneficiaries as per the terms outlined in the trust document.

Turn to a Trusted Texas Probate Attorney

Our experienced trust attorneys proudly provide wise and compassionate representation to Texas families in the Dallas-Fort Worth area. We understand how emotional and complicated estate planning can be, which is why our firm is committed to helping our DFW neighbors navigate the complexities of probate law.

At Crain & Wooley, our seasoned lawyers fight to give Texas families the closure, clarity, and healing they deserve. From trusts to estate planning to wills, our compassionate lawyers have the comprehensive knowledge to guide your legal steps with wisdom and integrity, empowering families to maintain their peace of mind no matter what life throws their way.

Contact us online to learn how our experienced firm can help preserve your hard-earned assets and ensure your estate is handled according to your wishes.

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