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UTC
The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.
DC
The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.
MD
(A) The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.
(b) Nothing in this section shall be construed to prohibit the creation of a revocable trust if that creation is otherwise authorized under State law.
(c) The fact that the settlor becomes incapacitated or loses the capacity required to create a will does not convert a revocable trust into an irrevocable trust.
VA
The capacity required to create, amend, revoke, or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will.
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UTC
(a) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before [the effective date of this [Code]].
(b) If a revocable trust is created or funded by more than one settlor:
(1) to the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
(2) to the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard the portion of the trust property attributable to that settlor’s contribution; and
(3) upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment.
(c) The settlor may revoke or amend a revocable trust:
(1) by substantial compliance with a method provided in the terms of the trust; or
(2) if the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by:
(A) a later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or
(B) any other method manifesting clear and convincing evidence of the settlor’s intent.
(d) Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.
(e) A settlor’s powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power.
(f) A [conservator] of the settlor or, if no [conservator] has been appointed, a [guardian] of the settlor may exercise a settlor’s powers with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the [conservatorship] or [guardianship].
(g) A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor’s successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.
DC
(a) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before the effective date of this chapter [March 10, 2004].
(b) If a revocable trust is created or funded by more than one settlor:
(1) To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
(2) To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution; and
(3) Upon the revocation or amendment of the trust by fewer than all of the settlers, the trustee shall promptly notify the other settlers of the revocation or amendment.
(c) The settlor may revoke or amend a revocable trust:
(1) By substantial compliance with a method provided in the terms of the trust; or
(2) If the terms of the trust do not provide a method or the method provided in the terms is not expressly made exclusive, by.
(A) A later will or codicil that expressly refers to the trust or specifically devises property that would otherwise have passed according to the terms of the trust; or
(B) Any other method manifesting clear and convincing evidence of the settlor's intent.
(d) Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.
(e) A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust or the power.
(f) A conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor may exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the conservatorship or guardianship.
(g) A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor's successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.
MD
(a) (1) Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust.
(2) This subsection does not apply to a trust created under an instrument executed before January 1, 2015.
(b) If a revocable trust is created or funded by more than one settlor:
(1) To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
(2) To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to the contribution of that settlor; and
(3) On the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment.
(c) The settlor may revoke or amend a revocable trust:
(1) By substantially complying with a method to revoke or amend the trust provided in the terms of the trust; or
(2) If the terms of the trust do not provide a method to revoke or amend the trust or the method provided in the terms of the trust is not expressly made exclusive, by:
(i) A later will or codicil that expressly refers to the trust or specifically devises property that would have passed otherwise according to the terms of the trust; or (ii) another method manifesting clear and convincing evidence of the intent of the settlor.
(d) On revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.
(e) The powers of a settlor with respect to revocation, amendment, or distribution of trust property may be exercised by an agent under a power of attorney only to the extent expressly authorized by the terms of the trust and the power of attorney.
(f) A guardian of the property of the settlor or, if no guardian of the property has been appointed, a guardian of the person of the settlor may exercise the powers of the settlor with respect to revocation, amendment, or distribution of trust property only with the approval of the court supervising the guardianship and only if the trust instrument does not provide otherwise.
[MISSING UTC(g)]
VA
A. Unless the terms of a trust expressly provide that the trust is irrevocable, the settlor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before July 1, 2006.
B. If a revocable trust is created or funded by more than one settlor:
1. To the extent the trust consists of community property, the trust may be revoked by either spouse acting alone but may be amended only by joint action of both spouses;
2. To the extent the trust consists of property other than community property, each settlor may revoke or amend the trust with regard to the portion of the trust property attributable to that settlor's contribution; and
3. Upon the revocation or amendment of the trust by fewer than all of the settlors, the trustee shall promptly notify the other settlors of the revocation or amendment.
C. The settlor may revoke or amend a revocable trust:
1. By substantial compliance with a method provided in the terms of the trust; or
2. If the terms of the trust do not provide a method, [MISSING "OR THE METHOD PROVIDED IN THE TERMS IS NOT EXPRESSLY MADE EXCLUSIVE, BY:"] [MISSING UTC(c)(2)(A)] by any method manifesting clear and convincing evidence of the settlor's intent.
D. Upon revocation of a revocable trust, the trustee shall deliver the trust property as the settlor directs.
E. A settlor's powers with respect to revocation, amendment, or distribution of trust property may be exercised by an agent, acting in accordance with § 64.2-1612, under a power of attorney that expressly authorizes such action except to the extent expressly prohibited by the terms of the trust. [UTC LANGUAGE SAYS "EXPRESSLY AUTHORIZED" HOWEVER VA CODE SAYS: "EXCEPT . . . EXPRESSLY PROHIBITED"]
F. A conservator of the settlor or, if no conservator has been appointed, a guardian of the settlor may exercise a settlor's powers with respect to revocation, amendment, or distribution of trust property only (i) to the extent expressly authorized by the terms of the trust or (ii) if authorized by the court supervising the conservatorship or guardianship for good cause shown.
G. A trustee who does not know that a trust has been revoked or amended is not liable to the settlor or settlor's successors in interest for distributions made and other actions taken on the assumption that the trust had not been amended or revoked.
Generally, when a trust is revocable, the duties of the trustee are owed exclusively to the settlor. However, DC §19-1306.03 and MD §14.5-603 provide that when the settlor does not have the capacity to revoke the trust, a beneficiary to whom distributions may be made during the lifetime of the settlor has the right to enforce the trust. This provision might apply to distributions to be made to the settlor’s spouse for his/her health and support. VA §64.2-752 lacks a similar provision.
Generally, when a trust is revocable, the duties of the trustee are owed exclusively to the settlor. However, DC §19-1306.03 and MD §14.5-603 provide that when the settlor does not have the capacity to revoke the trust, a beneficiary to whom distributions may be made during the lifetime of the settlor has the right to enforce the trust. This provision might apply to distributions to be made to the settlor’s spouse for his/her health and support. VA §64.2-752 lacks a similar provision.
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UTC
(a) While a trust is revocable [and the settlor has capacity to revoke the trust], rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.
(b) During the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power.
DC
(a) While a trust is revocable, [MISSING "[AND THE SETTLOR HAS CAPACITY TO REVOKE THE TRUST],"] rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.
[MISSING UTC(b)]
(b) While a trust is not revocable, for so long as a person has a currently exercisable power of withdrawal over the entire principal of the trust, the duties of a trustee are owed exclusively to such person.
(c) While a trust is revocable and a settlor does not have the capacity to revoke the trust, a beneficiary shall have the right to enforce the settlor's intent to benefit the beneficiary during the settlor's incapacity.
MD
(a) Except as provided in subsection (b) of this section, while a trust is revocable, [MISSING "[AND THE SETTLOR HAS CAPACITY TO REVOKE THE TRUST],"] rights of the beneficiaries are subject to the control of the settlor and the duties of the trustee are owed exclusively to the settlor.
[MISSING UTC(b)]
(b) While a trust is revocable and a settlor does not have the capacity to revoke the trust, a beneficiary to which distributions may be made during the lifetime of the settlor shall have the right to enforce the trust as if the trust were irrevocable.
VA
A. While a trust is revocable, [MISSING "[AND THE SETTLOR HAS CAPACITY TO REVOKE THE TRUST]"] rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the settlor.
B. During the period the power may be exercised, the holder of a power of withdrawal has the rights of a settlor of a revocable trust under this section to the extent of the property subject to the power.
DC §19-1306.04 provides that a person may commence a judicial proceeding to contest the validity of a revocable trust within the earliest of (1) one year after the settlor’s death, (2) 90 days after the trustee sent the person a notice with all relevant information, or six months after the date of the first publication of notice with all relevant information. VA §64.2-753 provides that a person may commence a judicial proceeding to contest the validity of a revocable trust within the earlier of (1) two years after the settlor’s death or (2) six months after the trustee sent the person a notice with all relevant information. The VA UTC provides no publication option. The MTA lacks a corresponding statute (see comment to
MD §14.5-604 related to partial revocation by divorce or annulment).
DC §19-1306.04 provides that a person may commence a judicial proceeding to contest the validity of a revocable trust within the earliest of (1) one year after the settlor’s death, (2) 90 days after the trustee sent the person a notice with all relevant information, or six months after the date of the first publication of notice with all relevant information. VA §64.2-753 provides that a person may commence a judicial proceeding to contest the validity of a revocable trust within the earlier of (1) two years after the settlor’s death or (2) six months after the trustee sent the person a notice with all relevant information. The VA UTC provides no publication option. The MTA lacks a corresponding statute (see comment to
MD §14.5-604 related to partial revocation by divorce or annulment).
DC §19-1306.04 provides that a person may commence a judicial proceeding to contest the validity of a revocable trust within the earliest of (1) one year after the settlor’s death, (2) 90 days after the trustee sent the person a notice with all relevant information, or six months after the date of the first publication of notice with all relevant information. VA §64.2-753 provides that a person may commence a judicial proceeding to contest the validity of a revocable trust within the earlier of (1) two years after the settlor’s death or (2) six months after the trustee sent the person a notice with all relevant information. The VA UTC provides no publication option. The MTA lacks a corresponding statute (see comment to
MD §14.5-604 related to partial revocation by divorce or annulment).
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UTC
(a) A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor’s death within the earlier of:
(1) [three] years after the settlor’s death; or
(2) [120] days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust’s existence, of the trustee’s name and address, and of the time allowed for commencing a proceeding.
(b) Upon the death of the settlor of a trust that was revocable at the settlor’s death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless:
(1) the trustee knows of a pending judicial proceeding contesting the validity of the trust; or
(2) a potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within 60 days after the contestant sent the notification.
(c) A beneficiary of a trust that is determined to have been invalid is liable to return any distribution received.
DC
(a) A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earliest of:
(1) One [SUBSTITUTED FOR "[THREE]"] year after the settlor's death;
(2) Ninety [SUBSTITUTED FOR "[120]"] days after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding; or
(3) Six months after the date of the first publication of notice of the trust's existence, the name and address of each trustee and of the settlor, and the time allowed for commencing a proceeding, in the same manner as required for publication of notice of appointment of a personal representative, if the trustee sends a copy of the text of such notice, not later than 15 days after the date of its first publication, to each qualified beneficiary of the trust, heir of the decedent, and other person who would be an interested person within the meaning of section 20-101(d) if the trust were a will and who would have been required to be sent notice of the appointment of a personal representative under section 20-704 if a personal representative had been appointed.
(b) Upon the death of the settlor of a trust that was revocable at the settlor's death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless:
(1) The trustee knows of a pending judicial proceeding contesting the validity of the trust; or
(2) A potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within 60 days after the contestant sent the notification.
(c) A beneficiary of a trust that is determined to have been invalid is liable to return any distribution received.
VA
A. A person may commence a judicial proceeding to contest the validity of a trust that was revocable at the settlor's death within the earlier of:
1. Two [SUBSTITUTED FOR "[THREE]"] years after the settlor's death; or
2. Six months [SUBSTITUTED FOR "[120 DAYS]"] after the trustee sent the person a copy of the trust instrument and a notice informing the person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding.
B. Upon the death of the settlor of a trust that was revocable at the settlor's death, the trustee may proceed to distribute the trust property in accordance with the terms of the trust. The trustee is not subject to liability for doing so unless:
1. The trustee knows of a pending judicial proceeding contesting the validity of the trust; or
2. A potential contestant has notified the trustee of a possible judicial proceeding to contest the trust and a judicial proceeding is commenced within 60 days after the contestant sent the notification.
C. A beneficiary of a trust that is determined to have been invalid is liable to return any distribution received.
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MD
(A) This section applies:
(1) (i) with respect to a final judgment of absolute divorce of the settlor and the settlor’s spouse, if the final judgment was entered into on or after October 1, 2016; or
(ii) With respect to an annulment of the marriage, if the annulment occurred on or after October 1, 2016; and
(2) Unless otherwise expressly provided:
(i) In the trust instrument;
(ii) By court order; or
(iii) By written agreement between the settlor and the settlor’s spouse or former spouse.
(B) On the absolute divorce of the settlor and the settlor’s spouse or the annulment of the marriage occurring after the creation of the settlor’s revocable trust:
(1) All terms of the trust relating to trust distributions to or for the benefit of the spouse shall be revoked, and, for the purposes of the trust, the spouse shall be deemed to have died on the date of the absolute divorce or annulment;
(2) If the spouse is serving as a trustee or as an advisor to the trustee of the trust, the spouse shall be removed as a trustee or an advisor on the date of the absolute divorce or annulment without further court action; and
(3) After the divorce or annulment, the former spouse may not:
(i) Serve as a trustee or as an advisor to the trustee of the trust; or
(ii) Exercise any trust or fiduciary powers provided in the terms of the trust, including any power of appointment.
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MD
A person shall commence a judicial proceeding to contest the validity of a trust that was revocable at the death of the settlor within the earliest of:
(1) 1 year after the death of the settlor; or
(2) 6 months after the trustee sends the person a copy of the trust instrument and a notice informing the person of the existence of the trust, the name and address of the trustee, and the time allowed for commencing a proceeding.
