The Intricacies of Amending Your Trust: What You Should Know
The Complexities of Trust Amendments
Amending a trust might seem like a simple procedure: visit an attorney, draft an amendment, sign, and have it notarized. However, the prevalence of litigation surrounding trust amendments suggests otherwise. Even when rules seem direct, complications arise, often resulting in legal disputes over the validity of these amendments.
When Handwritten Notes Don't Count
A notable example is the case of Pena v. Dey, where an individual tried to argue that handwritten modifications to a settlor’s trust, combined with a post-it note bearing the settlor’s handwritten name, counted as a valid amendment. However, the court disagreed. When a trust doesn't provide a specific amendment procedure, the default rule requires a written statement, signed by the Settlor, and delivered to the trust's trustee. In the Pena case, the changes weren't signed by the Settlor or given to the trustee, thus leading to its invalidation.
Recent Litigations: Diaz v. Zuniga
2023 brought forth another similar case, Diaz v. Zuniga (2023) 91 Cal.App5th 91. The Second District Court of Appeal highlighted the importance of adhering to the trust's specified amendment procedures. If a trust prescribes a specific procedure for its amendment, that procedure is sacrosanct. Deviation can nullify the amendment and potentially frustrate the Settlor's original intentions.
In Diaz v. Zuniga, the trust stipulated that amendments should be delivered to the trustee via certified mail. When the Settlor, who was also the trustee, failed to send the amendment to himself via certified mail, the amendment was deemed invalid. The repercussions of this oversight were profound, especially since the amendment in question altered the trust's distribution.
A Legal Perspective
From an attorney's standpoint, there's a distinct need to evaluate the specificity of trust amendment procedures. While the aim is always to uphold the Settlor's original intentions, the letter of the law, especially when explicitly outlined in a trust, must be followed. Though in cases like Diaz v. Zuniga it might seem like the Settlor's wishes were sidelined due to a technicality, the law remains clear on the matter.
Amending Your Trust: What You Need to Know
If you possess a trust and wish to make alterations, the first step is to locate the section detailing the amendment process. Typically, the process requires the Settlor's signed statement to be delivered to the trustee. However, always consult with an attorney, especially if the trust's language seems ambiguous or lacking.
Amending a trust is not an endeavor to be taken lightly. Ensure you're well-informed, meticulous, and seek legal guidance when in doubt. When a trust provides specific instructions, it's imperative to follow them to the letter.
Read more: The Hidden Pitfalls of Adding Children to Property Titles
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