Tom Benson transfers assets from his $2 Billion irrevocable trust. Begs the question: Can you alter an irrevocable trust?

Tom Benson, owner of the New Orleans Saints, set up an irrevocable trust which held a significant portion of his $2 billion estate. Recently though, Benson instructed the trustee of the trust to transfer controlof his pro sports franchises, auto dealerships, real estate, and banking interests to his wife, Gayle. Now, Benson’s daughter and grandchildren have thrown a flag on the play. Their stance: you cannot change an irrevocable trust.

But how strong is their case?

• Generally when a grantor (the person creating a trust) creates an irrevocable trust in Florida, he or she specifies in the trust agreement that the trust is irrevocable.
• This means that the grantor retains no power to amend, modify, or alter the trust.
• Contrast that with revocable trusts, in which grantors routinely provide that they reserve the rights to amend, modify, or alter the trust until death or incapacity.
• However, with regard to irrevocable trusts, under certain circumstances, an irrevocable trust may, in fact, be amended.

Usually amending an irrevocable trust requires petition to be filed with the Florida Probate courts. Any Palm Beach trust attorney knows that this can be time-consuming and expensive.  Further, there is no gaurantee that the probate judge will grant the petition as requested.  Section 736.0412 of the Florida Trust Code provides an alternative to this process, allowing for modification of an irrevocable trust without the need for judicial approval.

The requirements of Section 736.0412 are:

1. The grantor must no longer be alive.
2. The trust must have been created after December 31, 2000.
3. All beneficiaries must be able to receive their interests in the trust within 90 years of creation.
4. There must be unanimous consent between the trustees, beneficiaries, and the next generation of beneficiaries who take the place of the current beneficiaries upon their death.

So, you may be asking, How can I change the terms of my mother of father’s irrevocable trust in West Palm Beach?  Palm Beach and Broward County probate litigation attorneys know that the first place to look will always be the non-judicial remedy under Florida Trust Code Section 732.0412.  If you can meet the requirements of that statute, you are likely to save yourself a lot of time and money.

See http://www.pankauskilawfirm.com/ for videos and information on Wills in Florida, Florida Trust Law, Estate Planning, and Estate Administration in Florida.