Unlike a revocable trust, in Florida, an irrevocable trust cannot be amended by the settlor (the creator) of the trust. Irrevocable trusts tend to be difficult to amend. They can only be amended in limited ways, such as the following:
- Agreement between trustee and beneficiaries – When all beneficiaries and trustees agree and consent, the trust can be amended using a nonjudicial agreement pursuant to Florida Statute 736.0412.
- Court – The Florida Trust Code allows a trustee or beneficiary to petition a court for an order amending or terminating an irrevocable trust if the purpose of the trust was fulfilled, illegal, impossible, wasteful, or impractical.
- Option to amend in the trust – In the trust, look for the words “power of appointment.” A power of appointment is the power to make changes to the trust and it is often given to the trustee or beneficiaries of a trust. If a power of appointment provision exists in your trust, follow the language of the provision to amend the trust.
- Decanting – Decanting is where all assets of a trust can be transferred to a new trust with more favorable trust terms. This is possible when a trust allows the trustee to distribute assets for any purpose or reason. See Florida Statute 736.04117.
- Trust protector – Some trusts allow an independent third-party to be appointed by the trustee, the beneficiaries, or the court. The individual appointed is called a “trust protector.” If there is a proposed amendment, the trust protector will review the amendment and decide whether to approve it. If the trust protector approves the amendment, then the trust is amended.
- Reformation – Reformation is a judicial action that is permitted by Florida Statute. Reformation seeks to make changes to a trust to preserve the grantor’s intent. The court will consider evidence of the grantor’s intent, even if the grantor’s intent contradicts the trust. See 736.0415.
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