How to revoke a trust in Texas

How can you revoke a trust in Texas?

In a recent case in Texas, a mother and father had a trust for the benefit of their two children. The mother died. The father later remarried and had two additional children. The father attempted to revoke the first trust and made provisions for the property to go to his four children, share and share alike. When the father died, one of the first two children asked the court to declare that the revocation of the first trust was invalid. The court agreed stating:

While a will is generally revocable at any time before the testator’s death, the law governing the revocation of a trust is different. A settlor may revoke a trust unless it is irrevocable by the express terms of the instrument creating it or of an instrument modifying it. No specific words of art are needed to create an irrevocable trust. However, the instrument must clearly reflect the settlors‘ intent to make the trust irrevocable.

If a trust is revocable but provides specific terms for how it may be revoked, the trust may not be modified unless those terms are complied with. If settlor of trust reserves power to modify trust only in specific manner, trust may only be modified in that manner. If a trust is revocable and does not contain terms governing its modification or revocation, the settlor may revoke it without complying with a specific procedure, but must manifest a clear intent to revoke the trust in order for it to be revoked. In order to revoke trust, settlor must manifest an intent to revoke trust. Statement in will expressly providing that trust was revoked was sufficient to revoke trust.

Here, the parents’ joint will, which was the instrument creating the parents’ trust, provided that the joint will could be revoked only “during the lifetime of both of us by mutual consent in writing first obtained.” It is undisputed that the joint will was not revoked by the parents’ mutual written consent. But more importantly, although Father executed a new will purporting to revoke his previous joint will, his new will did not mention the parents’ trust nor attempt to revoke it. Thus, aside from the question of whether Father was even capable of revoking the parents’ trust (as opposed to the parents’ will), he did not manifest a clear intent to revoke the trust. Accordingly, we conclude that Father’s 1993 will did not revoke the parents’ trust. 01-16-00194-CV.

An irrevocable trust can’t be revoked. Revoking a revocable trust can be done but it requires close attention to the means and method used. Simply believing you have revoked a trust is not enough.