When drafting a revocable trust, your clients may be very keen to include a particular niece or cousin, but then have a change of heart years later and want to write them out. As long as the trust allows it, you can simply amend the trust for them instead of revoking it and starting fresh. Here’s how.
A trust is revocable unless it provides otherwise (Prob C §15400), and the power to revoke a trust includes the power to modify it. See Prob C §15402. But to avoid any uncertainty about whether amendments are permitted and how they should be made, the trust instrument should include an express power to amend and should describe the amendment procedure.
So, before starting on an amendment of the trust, read the trust document carefully and be sure that there is nothing in the trust that would preclude the type of amendment you’re making. And make sure that the form of amendment you are using complies with any requirements set out in the trust.
Then, determine which provision(s) you want to modify and make sure you correctly identify where it is located in the trust document (i.e., division, section, paragraph number, etc.).
When amending a trust, you’ve got three options:
- Amend a provision in its entirety, e.g., “Division _ _[roman numeral]_ _ paragraph _ _[letter]_ _ is amended to read in its entirety as follows: _ _[Set out amended paragraph in its entirety]_ _.”
- Delete a provision, e.g., “Division _ _[roman numeral]_ _ paragraph _ _[letter]_ _ is deleted.”
- Add a provision, e.g., “Division _ _[roman numeral]_ _ paragraph _ _[letter]_ _ is added to read as follows: _ _[Set out new paragraph]_ _.”
Make sure to state that the trust remains unchanged in all other respects.
It’s also possible to restate the trust in its entirety with the desired modifications. A restatement may be preferable to a partial modification if the trust is becoming difficult to read because of layers of amendments. See Prob C §16060.5.
A trust amendment or restatement need not be witnessed or notarized (see Prob C §§15200, 15206), but it’s much better practice to do so.
For everything you need to know about revocation and amendment of a revocable trust, turn to CEB’s Drafting California Revocable Trusts, chap 20 (with a sample form for amending a trust in §20.9) and California Trust Administration, chap 16 (with a sample form of restatement in §16.8). Also check out CEB’s California Estate Planning §6.17.
Other CEBblog™ posts you may find useful:
- Codicil vs. New Will
- Does a Class Gift to Children Include Adult Adoptees?
- Should You Go with a Living Trust?
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