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  • Writer's pictureKonstantine Demiris

Amending a Trust Requires Strict Compliance

Amending a trust is not something a person should do casually. California law provides for strict requirements, especially when there are typical co-settlor/co-trustee trusts involving married people.

Probate Code Section 15401 states the ways a co-settlor can revoke or amend a trust for trusts that were executed ON OR AFTER July 1, 1987. A trust generally speaking cannot be revoked by a will unless the trust instrument allows for such revocation. Also, delivery provisions must be complied with and cannot be ignored. For example if a married person wishes to revoke a trust with a spouse, and both are co-settlors and co-trustees, then the revocation will generally need to be delivered to the other co-settlor/co-trustee unless the trust states otherwise. Below is Probate Code section 15401 as of January 1, 2020. Remember, the law on revoking a trust is a detailed and fact intensive situation and this post only provides a taste of one of many wrinkles involving revocation of a trust.

(a) A trust that is revocable by the settlor or any other person may be revoked in whole or in part by any of the following methods:

(1) By compliance with any method of revocation provided in the trust instrument.

(2) By a writing, other than a will, signed by the settlor or any other person holding the power of revocation and delivered to the trustee during the lifetime of the settlor or the person holding the power of revocation. If the trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation, the trust may not be revoked pursuant to this paragraph.

(b)(1) Unless otherwise provided in the instrument, if a trust is created by more than one settlor, each settlor may revoke the trust as to the portion of the trust contributed by that settlor, except as provided in Section 761 of the Family Code.

(2) Notwithstanding paragraph (1), a settlor may grant to another person, including, but not limited to, his or her spouse, a power to revoke all or part of that portion of the trust contributed by that settlor, regardless of whether that portion was separate property or community property of that settlor, and regardless of whether that power to revoke is exercisable during the lifetime of that settlor or continues after the death of that settlor, or both.

(c) A trust may not be modified or revoked by an attorney in fact under a power of attorney unless it is expressly permitted by the trust instrument.

(d) This section shall not limit the authority to modify or terminate a trust pursuant to Section 15403 or 15404 in an appropriate case.

(e) The manner of revocation of a trust revocable by the settlor or any other person that was created by an instrument executed before July 1, 1987, is governed by prior law and not by this section.

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