Monday, May 26, 2014


As an attorney who has been practicing in the area of Trusts and Estates for over 35 years, I find that one of the most commonplace disputes which leads to sometimes unnecessary litigation and is the source of numerous  issues which cause so many problems is the self-caused  act of modifying and amending  Wills and Trusts. 

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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