Hear from ELG Estate Planning founder and top Estate Planning Attorney Lynn St. Louis as she reviews what to do with your Joint Revocable Trust when the first spouse dies.

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When a married couple creates a joint revocable living trust, they typically do so in order to streamline their estate planning and ensure that their assets are protected and distributed according to their wishes after they pass away. However, when the first spouse dies, there are certain steps that the surviving spouse and the trustee need to take in order to ensure that the trust is properly administered.

First and foremost, it is important for the surviving spouse and the trustee to review the terms of the trust document to understand their respective rights and responsibilities. The trust document will outline how the trust assets are to be managed and distributed upon the death of the first spouse, and it may also specify how the surviving spouse can amend or revoke the trust.

In most cases, the surviving spouse will become the sole trustee of the trust after the first spouse dies. This means that the surviving spouse will have the authority to manage the trust assets and make decisions about how they are to be distributed. However, it is important for the surviving spouse to understand that they have a fiduciary duty to act in the best interests of the trust beneficiaries, who are typically the couple’s children or other heirs.

One of the key benefits of a joint revocable living trust is that it allows the surviving spouse to avoid the time-consuming and expensive probate process. Because the trust assets are held in the name of the trust, rather than in the name of the deceased spouse, they can be distributed to the beneficiaries without the need for probate. However, it is still important for the surviving spouse to take the necessary steps to ensure that the trust assets are properly transferred to the beneficiaries.

If the trust document requires the surviving spouse to create separate trusts for the benefit of the children, the surviving spouse will need to work with an estate planning attorney to establish these separate trusts. This may involve transferring a portion of the trust assets into separate accounts that are designated for the benefit of the children, and it may also involve creating new trust documents that specify how these assets are to be managed and distributed.

In some cases, the surviving spouse may also choose to amend or revoke the joint revocable living trust in order to make changes to the trust terms or to create new trusts for the benefit of the children. However, it is important for the surviving spouse to understand the legal and tax implications of making these changes, and it is advisable to seek the guidance of an experienced estate planning attorney before taking any action.

Overall, when the first spouse dies in a joint revocable living trust, the surviving spouse and the trustee need to carefully review the trust document and take the necessary steps to ensure that the trust assets are properly managed and distributed. By working with an attorney and following the terms of the trust document, the surviving spouse can ensure that the trust fulfills its intended purpose of providing for the beneficiaries in an efficient and effective manner.