Let’s discuss a topic that I see regularly in my Trust Litigation practice: The failure of settlors of California Revocable Trust to appropriately amend or revoke their trust.
If you have a Revocable Trust here in California, and you want to amend it during your lifetime, or you want to revoke it during your lifetime, you certainly can do so, but you need to make sure you do it correctly.
The correct procedure to amending or revoking your Revocable Trust is set forth in Probate Code Section 15401. The first thing Section 15401 tells you to do is to look at your Trust document itself. Generally, here in California, Estate Planners will include in the Revocable Trust, instructions on how to amend or revoke said Trust.
Sometimes that language is missing. If missing, there is a fallback provision in Section 15401, which requires that a Settlor of a California Revocable Trust, wanting to amend or revoke their Trust during their lifetime, needs to do so in a separate written document. That written document needs to be created in the same manner as the original Trust was created and be executed in the same manner as the original Trust was executed. Here in California, that generally means before a notary.
The written document must set forth the specific amendments to be made to the Trust. If it’s a revocation, the document must specify the fact that the Trust is being revoked. In order for the amendments or revocation to be valid, that Trust amendment or Trust revocation must be delivered to the current acting trustee. Another thing to note in Section 15401, is that that written document cannot be your Last Will and Testament.
If you’re going to amend your revocable Trust, here in California during your lifetime, or revoke it during your lifetime, and there’s no language in your Trust instructing you how to do so, you’ve got to create a separate written document, created in the same way as your original Trust. Executed in the same way as your original Trust. State specifically the amendments you want to make or the fact that you’re revoking your Trust, and deliver that written document to your trustee.