How Do You Amend or Revoke a Trust?

How Do You Amend or Revoke a Trust?

Two recent California appellate court cases with inconsistent holdings leave some confusion as to what the requirements are for amending or revoking a trust.  In the case of Haggerty v. Thornton, the court found that a trust may be amended or revoked either by (1) the terms for amendment set forth in the trust or (2) Probate Code requirements that require a signed writing to the holder of the amendment/revocation power, unless the trust provides that the former is the exclusive method for doing so.

Meanwhile, the court in Balistreri v. Balistreri held that when a trust specified a method of amendment, regardless of whether it is exclusive or permissive, and whether the method for revocation is different than the method of amendment, the Probate Code does not permit validating an amendment that was not executed in compliance with the trust instrument.

So which is it?  The California Supreme Court has granted review of both of these cases.  Thus, further clarification of the law on the method of amending and revoking trusts is to be determined.  In the meantime, if you are creating an estate plan that includes a trust, you should carefully consider the language you use with respect to how the trust can be amended or revoked.  You may want to include language specifying the procedure for amendment or revocation as exclusive, or, if you choose, you can permit that the trust can be amended or revoked according to either a specific method or by complying with the terms of the Probate Code.  In any event, you should be explicit about the amendment/revocation procedure.

Epps & Coulson, LLP has experienced attorneys who have represented many clients in estate planning, trust and probate matters.  If you have any questions or need to engage legal counsel in connection with your estate plan or probate case, please contact Dawn at dcoulson@eppscoulson.com or Adam at anicolai@eppscoulson.com.

Information contained in this Memo is intended for informational and educational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.  It is likely considered advertising.  Epps & Coulson, LLP encourages you to call to discuss these matters as they apply to you or your business.

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