1. Generally
    1. Trusts in NY Are Irrevocable by Default
    2. Creator Can Unilaterally Amend or Revoke a Revocable Trust
    3. Creator Cannot Unilaterally Amend or Revoke an Irrevocable Trust
  2. Modifying or Revoking an Irrevocable Trust Under EPTL 7-1.9
    1. Generally
    2. The Statute
    3. Legislative History
    4. Applying EPTL 7-1.9
      1. Step 1: If Creator Is Deceased, STOP! Cannot Apply EPTL 7-1.9
      2. Step 2: If Trust Has Explicit Revocation Rule, STOP! Apply It Before EPTL 7-1.9
      3. Step 3: Determine Beneficiaries
      4. Step 4: Determine Contingent Beneficiaries
      5. Step 5: If Beneficiary or Contingent Beneficiary Is Infant, STOP! Cannot Revoke Under EPTL 7-1.9

Generally

Trusts in NY Are Irrevocable by Default

EPTL 7-1.16 provides that a trust is deemed irrevocable unless the trust instrument expressly provides that it is revocable. Nevertheless, it is prudent to expressly state that the trust is irrevocable by including language such as the following: “This trust shall be irrevocable and shall not be subject to any alteration or amendment.”

Creator Can Unilaterally Amend or Revoke a Revocable Trust

The creator of a revocable trust can unilaterally amend or revoke the trust, either by an instrument while alive1 or by specific reference in a will2.

Creator Cannot Unilaterally Amend or Revoke an Irrevocable Trust

People usually think that “irrevocable” means the trust creator cannot revoke or amend the trust. But this definition is incomplete.3 A trust is “irrevocable” because the trust creator cannot unilaterally amend or modify the trust. There are judicial and non-judicial ways to amend or revoke an irrevocable trust.

Modifying or Revoking an Irrevocable Trust Under EPTL 7-1.9

Generally

EPTL 7-1.9 provides that the creator of a trust may revoke it if the creator obtains the written, notarized consent of the trust’s beneficiaries.

The Statute

[statute used to go here]

Legislative History

Applying EPTL 7-1.9

Step 1: If Creator Is Deceased, STOP! Cannot Apply EPTL 7-1.9

You cannot use EPTL 7-1.9 if the creator is dead.

Step 2: If Trust Has Explicit Revocation Rule, STOP! Apply It Before EPTL 7-1.9

Typical trusts are either revocable or irrevocable, but something in between is possible.

  • If the trust is revocable (and does not specify a revocation procedure), then the creator can revoke the trust outright without having to obtain the consent of the beneficiaries.
  • If the trust is irrevocable (and does not specify a revocation procedure), then the creator might be able to revoke it under EPTL 7-1.9. In this case, proceed to Step 3 (below).
  • A more difficult scenario is a trust that specifies a revocation procedure. If the trust has an explicit rule for revocation, then the creator must meet the conditions of that rule before applying EPTL 7-1.9.4

Matter of Perosi v. LiGreci, 98 A.D.3d 230, 948 N.Y.S.2d 629 (App. Div. 2nd 2012):

Where a trust instrument specifies a procedure by which the trust may be amended, an amendment will only be valid where that procedure has been followed (see Matter of Dodge, 25 NY2d 273, 250 NE2d 849, 303 NYS2d 847 [1969]; Whitehouse v Gahn, 84 AD3d at 951; Matter of Elser v Meyer, 29 AD3d at 581; Matter of Rice v Novello, 25 AD3d 992, 993, 808 NYS2d 486 [2006]; Matter of Chiaro, 28 Misc 3d 690, 903 NYS2d 673 [2010]; Matter of Goetz, 8 Misc 3d 200, 793 NYS2d 318 [2005]). For example, in Matter of Rice, the Court held that the creator's attorney-in-fact could not amend a revocable trust where the trust unambiguously required the creator to act for himself to effectuate an amendment, "and denied [the creator] the ability to amend the trust through an agent" (Matter of Rice v Novello, 25 AD3d at 993). In Matter of Elser v Meyer (29 AD3d 580, 814 NYS2d 684 [2006]), the trustee was permitted to revoke an irrevocable trust, but the trustee refused a revocation proposed by the creator and the sole beneficiary. After determining that the trustee's consent to revoke was required by the terms of the trust, this Court remitted the matter to the Supreme Court to determine whether the trustee had unreasonably withheld his consent (id.). However, if a trust instrument does not set forth an amendment procedure, then the creator is only restricted by the statutory requirements set forth in EPTL 7-1.9.

Step 3: Determine Beneficiaries

Step 4: Determine Contingent Beneficiaries

When applying EPTL 7-1.9, you must determine who the contingent beneficiaries are.

  • Contingent beneficiaries are those who are named to take alternate dispositions.
  • Contingent beneficiaries are typically a class.
  • ==Do we look at alternate beneficiaries of the income, principal, or both???==

Step 5: If Beneficiary or Contingent Beneficiary Is Infant, STOP! Cannot Revoke Under EPTL 7-1.9

If infants are beneficially interested in the trust, then revocation cannot be accomplished under the provisions of EPTL 7-1.9 because infants are legally incapacitated to consent to a revocation.5

  1. EPTL 7-1.17. ↩

  2. EPTL 7-1.16. ↩

  3. “While conventional wisdom implies that an irrevocable trust is irrevocable, a New York trust is not irrevocable in the purist definition of the term,” writes Michael J. Amoruso in Using EPTL § 7-1.9 to Revoke an Irrevocable Trust - Tax and Medicaid Considerations, April 11, 2005. ↩

  4. See In re Dodge’s Trust, 25 N.Y.2d 273 (1969); Matter of Perosi v. LiGreci, 98 A.D.3d 230, 948 N.Y.S.2d 629 (App. Div. 2nd 2012). ↩

  5. See In re Dodge’s Trust, 25 N.Y.2d 273 (1969). ↩