Also known as: revocable declarations of trust · revocable trust
Written by attorneys · grounded in primary & secondary sources — see below
An instrument by which a settlor declares a trust over identified property while retaining the power to revoke or amend the trust during the settlor's lifetime. The capacity required to create, amend, revoke, or add property to the trust is the same as that required to make a will.
Roger Ramirez, while hospitalized, signs a document declaring himself trustee of his brokerage accounts for the benefit of his children and expressly reserves the right to revoke or amend at any time. Because Roger possesses the mental capacity required to execute a will, the declaration creates a valid revocable trust even though no separate transfer of title occurs.
Rosalind Reed's estate includes assets held in a revocable trust she created by declaration. In a federal estate-tax controversy, the court determines the trust's validity and the characterization of interests under state law as authoritatively decided by the state courts rather than re-litigating those property questions.
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Yes. Under the majority statutory approach, divorce revokes any revocable disposition or fiduciary nomination in favor of the former spouse by treating the former spouse as having predeceased the settlor, unless the instrument, a court order, or a marital agreement expressly preserves the interest.
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No. Marital property transferred to a revocable trust remains marital property because the transfer itself does not alter the underlying ownership character between the spouses.
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The capacity required is the same as that needed to make a will.
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…end our analysis. For example, in Sullivan v. Burkin , 390 Mass. 864, 867 (1984), we ruled prospectively that the assets of a revocable trust will be considered part of the “estate of the decedent” in determining the surviving spouse’s statutory share. Treating the components of the decedent’s estate plan separately, and not as…