Old Revocable Trust vs. New Irrevocable Trust with new Trustee and beneficiary

[kay7lme]

What is the name of your state? Louisiana
In the state of California how is a new irrevocable trust created in Louisiana by a now deceased settlor with a new trustee and beneficiary protected from invalidation by the old revocable trust in California with a former trustee and beneficiary? Please note the elder failed to mention the old trust existed and it was never revoked.

Thanks!
Kay7lme

 

[Zigner]

The question is how to keep the old trust from "overriding" the new trust, right?
Somebody is going to need to get an attorney involved if this becomes a contentious issue. It's way beyond the scope of an internet forum.

 

[LdiJ]

The question is how to keep the old trust from "overriding" the new trust, right?
Somebody is going to need to get an attorney involved if this becomes a contentious issue. It's way beyond the scope of an internet forum.

If the revocable trust remained unfunded and/or the assets removed from the revocable trust and the assets were placed in the new, irrevocable trust then wouldn't that effectively "revoke" the original trust?

 

[Zigner]

If the revocable trust remained unfunded and/or the assets removed from the revocable trust and the assets were placed in the new, irrevocable trust then wouldn't that effectively "revoke" the original trust?

In essence, yes, I would agree with that. However, those are things we are left guessing.

 

[HRZ]

IF we guess wrong then it remains likely that the original revocable trust remains the controlling docuement at least as to anything funded into that trust and not removed....apparently settlor failed to properly revoke trust per applicable CA rules

 

[Taxing Matters]

What is the name of your state? Louisiana
In the state of California how is a new irrevocable trust created in Louisiana by a now deceased settlor with a new trustee and beneficiary protected from invalidation by the old revocable trust in California with a former trustee and beneficiary? Please note the elder failed to mention the old trust existed and it was never revoked.

We are left without facts to really answer what I suspect is your real question: which trust controls the decedent’s assets. The answer to the literal question you asked is that the new irrevocable trust is not “invalidated” by the old revocable one. The question is, rather, which trust holds the assets.

For example, if the assets were put into a revocable trust before the decedent died and the the trust was never revoked before death, it typically becomes irrevocable the moment the decedent died. That trust then holds the assets that had been placed into it and those assets are not part of the probate estate. If the new trust was one created in the decedent’s will (known as a testamentary trust), then that testamentary trust only gets funded by assets that are in the probate estate. Since assets that were already in that first trust (the one that started out as a revocable trust) are not part of the probate estate and thus would not be available to go into the testamentary trust.

So you need to organize the facts and see what assets go to each trust.

 

[ALawyer]

I find the question somewhat incomprehensible.

In a typical revokable living trust the settlor (the person establishing the trust) names him or herself as the trustee, and also names a successor trustee to take over upon his or her death or disability. Upon the settlor's death the revocable trust becomes irrevocable, and the successor trustee is supposed to carry out the terms of the trust -- distributing the assets in the trust to the beneficiaries named in the trust in the manner and within the time frame specified by the now irrevocable trust.

If assets were never placed into a revocable trust, and the deceased did not have a Will naming that revocable trust as the beneficiary of his or her estate (such Wills are called "pour-over Wills") the original revocable trust would be just a meaningless piece of paper.

If the deceased had created a new revocable trust, and funded that new trust or named it as the beneficiary under a pour-over Will, then terms of the new Trust would govern who gets what.

 

[HRZ]

I agree...but we are still flying blind...and there is at least a 3d possibility..neither trust was properly funded earlier and any pour over provisions are unclear because the trust is poorly identified .

more details will help with better suggestions .