Legally, Wills cannot be
technically “amended” or revised. Rather, all changes made to a Will are
accomplished via the preparation of what is customarily referred to as a
“codicil.” Codicils are written for the
express purpose of modifying or making changes to an existing Will.
As is the case with Wills, in
California, Codicils can be entirely handwritten or they may be typed up and
witnessed. Legally, the signing of Wills
requires at least two witnesses. By law,
a typed up Will must be witnessed as well as signed by the testator (the
person of whose Will it is). However,
California Law also provides for Wills to be written (instead of typed)
entirely in the handwriting of the Testator. Such Wills are legally referred to
as “Holographic” Wills.
Holographic Wills do not
require witnesses. In order to be a
valid, a holographic Will must be written on plain paper, it must be dated, it
must be entirely in the handwriting of the Testator and it must be
signed. As written above, holographic
Wills do not require witnesses. In fact, the witnessing of such a will might in
fact act to disqualify such a will as being “holographic.”
The same holds true for a
Holographic Codicil. Like Wills,
Holographic Codicils must satisfy the same standards but should not be
witnessed. On the other hand, if a
Codicil is typed up, then witnesses will once again (as is the case with
Wills), be required.
Problems arise when instead
of preparing and executing a Codicil (Holographic or typed) a Testator attempts
to make changes on their existing Will through cross outs, handwritten
interlineations and so on.
These “changes” to the Will
create problems for numerous reasons.
Often times, the changes (while legible to the person who made them) are
confusing to later readers. There are
also questions as to exactly “who” made those changes and when they were
made. Sometimes, Testators attempt to
“date” the changes or initial them.
Attempting to amend a Will in this manner is obviously very
dangerous. It creates conflicts within
the Will and many times the changes are confusing and cannot be understood or
even read. Most importantly, sometimes
the changes will dramatically affect the original intent of the Testator. Thus, it obviously makes sense to see a
lawyer before attempting to make any changes to a Will or Codicil.
The situation is the same
with respect to Trusts. However, unlike
in the case with Wills, Trusts are changed by “amendment.” There is no such thing as a “Codicil” to a
Trust. Thus, when Trusts are amended,
they are amended through a first, second or third, etc., amendment. As is the case with Wills, amendments to
Trusts can also be handwritten. Unlike
the case with Wills, however, Trusts do not need to be witnessed. However, customarily, Trusts are executed
before a Notary Public in order to ensure that the person who actually executed
the Trust (or any amendment to the Trust) is in fact the person who created the
document in the first place. Persons who
execute amendments to their Trust (or original Trust documents) who do not have
their signing notarized jeopardize the efficacy of the document and open the
document to questioning from a skeptical omitted beneficiary as to whether or
not the amendment was actually signed by the creator of the Trust (commonly
referred to either as a “Trustor” or as a “Settlor”).
When Trusts are amended, the
writer of the amendment usually chooses between creating a simple amendment to
the Trust or “restating” the Trust. An
Amendment format is usually used when there is only a minor change to the
Trust. By way of example, the changing
of the originally named “successor Trustee” from one person to another person
or a minor change in one of the bequests would utilize and require a simple
amendment.
Problems arise, however, when
amendments become too “long” or too many in number. For example, it often becomes quite difficult
to actually read a Trust when there are five or six amendments to it. These amendments will require the reader to
go back to each of the prior versions and try to integrate them all in order to
make sense of what the fifth or sixth amendment actually means.
In those types of cases (when
there are multiple amendments) or, where the amendments are complex, it only
makes sense to “re-state” the Trust by ostensibly creating a new Trust, but not
terminating the entity, thus superseding the earlier versions of the Trust as
well as earlier amendments and consolidating all of them into one document
known as a “First Restatement of Trust”.
In this manner, one need not worry about assets from the original Trust
being taken out of trust by operation of law and then having to affirmatively
change title of all the assets to be in the name of the Trustee of the new
trust. It remains the same trust, as
restated on a new date.
In summary, therefore, when
making amendments to a Trust instead of interlineating those changes or doing
them on a “self-help” basis, it is best to seek an attorney in order to ensure
that the changes that are being made are truly what the writer wishes to
accomplish and in order to ensure that the Trust, Will and or any of its
amendments or codicils will eventually be enforced and followed.
We here at Cooper-Gordon are
available to assist you with any amendments, restatements or codicils that you
would like to make.
By: Avery M. Cooper, Esq.
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