Legal Question in Wills and Trusts in California
My mother executed a living Trust that became irrevocable upon her death and although some provisions of the Trust provide language in them that permit the co-trustees to use absolute discretion in performing their duties, there appears no such power to change a provision itself. A Resolution of Conflict clause states that where there are controversies between any party to the Trust they must be resolved by the disputing party providing written notice to the other and submitting the matter for arbitration to comply with the commercial rules of the American Arbitration Association and be binding. One trustee didn't comply and applied to the Court which ended up with the Court ordering the matter to AAA binding arbitration according to the Trust. Can the co-trustees agree to change the provision or any part of it, or is the Court's decision that confirms the provisions of the Trust final?
2 Answers from Attorneys
When the settlor/trustor/grantor is deceased, you can only modify an irrevocable trust by petitioning the court and making certain arguments. The court has to approve the modification.
I agree with Ms. Rouse. There is a procedure to have the court approve a modification of a trust. It's easier if everyone is in agreement on the modification. I recommend speaking to an estate planning attorney who is familiar with the procedure.
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