Irrevocable trusts can be valuable tools for estate and tax planning purposes, however the assumptions on which an irrevocable trust are based can change. Beneficiaries can fall out of favor; their needs may change. New people or entities may emerge who were not named in the trust but whom the settlor would like to favor or may reasonably be expected to have wanted to favor. The settlor may or may not be alive when such changes occur.

When are Irrevocable Trusts Revocable?

If the settlor is alive and so desires, an ostensibly irrevocable trust can be revoked or amended under New York law if all beneficiaries consent. EPTL 7-1.9. However, all means all. There is no statutory basis for limiting consent to only the adult, legally competent beneficiaries. Living grandchildren, even if minors, are contingent beneficiaries who cannot legally consent. Adult beneficiaries, current or contingent, who lack the requisite mental capacity to consent must also be considered.

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