1.3.2 Revocation of Joint Trusts
Under current Maryland law, one must look to the trust instrument to ascertain whether it is revocable because Maryland follows the Common Law rule that trusts are, by default, irrevocable. Thus, the fact of revocability and its extent are governed by the trust instrument, not statute or case law.
The Uniform Trust Code provides that each settlor of a joint trust may revoke or amend the trust with regard to portions of the trust property attributable to that settlor’s contribution. A special rule applies when community property rights are concerned. UTC § 602(b). The Comment states: “Subsection (b) does not address the many technical issues that can arise in determine the settlors’ proportionate contribution to a joint trust … In the case of joint tenancies of real estate, each spouse would presumably be treated as having made an equal contribution because of the right to sever the interest and convert it into a tenancy in common … Most difficult may be determining a contribution rule for entireties property. In Holdener v. Fieser, 971 S.W. 2d 946 (Mo. Ct. App. 1998), the court held that a surviving spouse could revoke the trust with respect to the entire interest but did not express a view as to revocation while both spouses were living.” [Missouri has adopted 602 of the UTC. Its effect on entireties property contributed to a joint trust is uncertain: “Because this article addresses issues only if raised by the new statutes, a long-standing concern about entireties property transferred to a trust will be noted only in passing. Tenancy by the entireties property is exempt from the creditors of just one spouse. Unfortunately, it is not clear that entireties property will retain this characterization, and, hence, protection from creditors, once it is transferred to a trust (because it is then held by the trustees, not by the spouses in their individual capacities). Consequently, planners should consider retaining entireties property outside the trust and using a non-probate transfer to the trust upon the death of one or both spouses.” Riley, “New Drafting Issues for Revocable Trusts,” 62 J. Mo. B. 22 (Jan/Feb 2006), at note 5.
