Different types of trusts exist, and each operates under unique rules. Just as importantly, California trust law governs these trusts differently, which directly affects how you and your attorney should approach trust litigation.
At Gokal Law Group, we’ve spent years helping clients navigate and resolve trust disputes involving both revocable and irrevocable trusts. Understanding the distinction between the two is crucial — it can determine the rights of beneficiaries, the powers of trustees, and the available legal remedies.
California Trust Law: Revocable Trusts vs. Irrevocable Trusts
There are several different kinds of trusts, but they all typically fall under one of two categories: revocable or irrevocable. The type of trust you are dealing with will dicate your options and approach to California trust litigation. Read on to learn the difference between both trusts.
What Are Revocable Trusts?
Under California trust law, a revocable trust, also called a living trust, is one that the creator (often called the settlor or grantor) can change or revoke at any time during their lifetime, as long as they remain competent.
Because the creator retains control, these trusts are flexible. For instance, the creator can:
- Transfer additional assets into the trust
- Add or remove beneficiaries
- Sell or exchange trust property
However, flexibility comes with trade-offs:
- Estate inclusion: Assets in a revocable trust are still considered part of the creator’s taxable estate.
- Creditor exposure: Assets are not shielded from the creator’s creditors or legal judgments.
- Transition to irrevocability: Once the creator passes away or becomes incapacitated, the trust generally becomes irrevocable, meaning it can no longer be amended or revoked.
“Once the trustee passes away or becomes incapacitated, it becomes an irrevocable trust and generally cannot be revoked or amended. This is essential to consider when pursuing California trust litigation because certain actions taken before or after that point may be within – or beyond – the trustee’s legal authority. Working with a professional helps determine what remedies may apply in your situation.” – Ron Larson, an Orange County trust litigation attorney with decades of litigation experience
What Are Irrevocable Trusts?
An irrevocable trust, by contrast, cannot be changed or revoked without a court order or consent of all beneficiaries according to California trust law.
Once assets are transferred into an irrevocable trust, the creator gives up control and ownership of those assets.
While irrevocable trusts offer less flexibility, they provide important advantages:
- Asset protection: Trust assets are generally protected from the creator’s creditors.
- Tax benefits: Assets may be excluded from the creator’s taxable estate.
- Clear ownership: The trust—not the creator—owns the property, helping ensure it’s managed and distributed according to the trust’s terms.
Typically, the trust language will specify that it cannot be altered after it takes effect, even if the creator later changes their mind.
“In one recent case, a trustee claimed low distributions were due to taxes and creditor fees after the creator’s death. But we were able to prove that the onus was on the trustee because, after taxes and creditor fees, there should have been ample assets to distribute sufficient assets and funds to the beneficiaries. Identifying these discrepancies requires careful legal review and experience navigating the nuances of California trust law.” – Ron Larson
Why the Difference Matters in Trust Litigation
Whether a trust is revocable or irrevocable determines:
- Who has control over trust assets
- When and how beneficiaries can challenge the trustee’s actions
- What remedies are available in court
For example, beneficiaries may have stronger claims for breach of fiduciary duty once a revocable trust becomes irrevocable, since trustees’ powers and obligations become fixed at that stage.
Understanding which type of trust you are dealing with—and what legal standards apply—is critical to protecting your rights and ensuring the trust is properly administered.
Premier Trust Litigation Lawyers in Orange County
No matter what type of trust is involved, working with an experienced trust litigation attorney is essential if you believe your inheritance or rights as a beneficiary are at risk. California trust law treats revocable and irrevocable trusts differently, and navigating those distinctions requires skill and experience.
At Gokal Law Group, our attorneys combine decades of litigation experience with in-depth knowledge of California trust law to help clients protect their interests and achieve fair outcomes.
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