In California, you can change a revocable and living trust document, however the amendment procedure will depend on the type of trust in place: revocable or irrevocable.
Reasons for a Living Trust Amendment
There are plenty of reasons for amending a trust. The most frequent reason to amend a living trust is the sale of trust property. Other events that require a change might be a marriage, the birth of a child, the change of value or ownership of an asset, or simply a change of heart by the settlor. Trusts also might have to be amended if the settlor moves to another state. Another reason might be a name change of the grantor or the death of the spouse or of a major beneficiary.
Revocable Living Trust Amendment
This type of trust is created whenever there is no specific language in the trust agreement that makes the trust irrevocable. These types of trusts can be amended in one of two ways. The first way to amend a revocable trust is to follow any procedures or methods for amendment provided in the trust agreement. For this reason, it is strongly suggested that you have an estate planning and/or trusts attorney write the trust agreement. However, if there are no procedures in the trust agreement for amendment, the trust can also be amended by a statement signed by the settlor of the trust and delivered to the trustee while the settlor is still alive. (California Probate Code §15401-15402).
Irrevocable Living Trust Amendment
The only way to amend an irrevocable living trust is to have the consent of each and every beneficiary to the trust. Once they all agree upon the amendment(s) to the trust, they can compel modification of the trust with a petition to the court. Note, however, that the court will not grant any amendments to a trust that are necessary for carrying out a material purpose, unless the reason for the amendment outweighs the interest in accomplishing the material purpose of the trust. Again, an estate planning and/or trusts attorney is strongly recommended for these complex situations. (California Probate Code §15403).
Notarization of the Amendment
All amendments need to be signed and attached to the original trust agreement. The signature on the amendment should also be notarized.
Restated Trust Documents
Avoiding logical errors proves difficult when amending long trust agreements, and it becomes increasingly complicated when more than one amendment is made. The living trust documents (the original agreement and any amendments) can then quickly become very confusing during the amendment process. In some cases, a restated version of the trust document is drafted. This substitutes the new amended trust agreement for the original trust agreement. An estate planning and/or trusts attorney can be imperative during this complex process.
If you have questions about amending your California Living Trust, contact the experienced estate planning and trust attorneys at the Law Offices of Christopher B. Johnson today.