ABOUT LIVING TRUSTS

 

law offices of merwyn j. miller
191 calle Magdalena, suite 270 • encinitas, ca  92024 • 760-436-8832

Merwyn J. Miller
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HOW NOT TO CHANGE A TRUST
A guide to procedures and techniques to make changes to Living Trusts.

Answer
Methods of Changing the Trust
Margin Notation
Paragraph Deletion
What You Pay the Attorney for

Dear Mr. Miller: When I had a Living Trust made several years ago, I had my daughter (my only child) and her husband included as my beneficiaries. She is to inherit my home and modest estate upon my death but, if she fails to survive me her husband inherits. Recently she informed me they are legally separated and feel divorce is not far behind.

I need advice on how to delete him from my Trust. Friends tell me all I need to do is cross out his name and make a notation on my documents explaining he is no longer included in my estate. Is this method legal?--Faithful Reader

Dear Faithful: We lawyers always talk about the virtues of Living Trusts as a less expensive and more efficient method of leaving property to our heirs. But we rarely discuss how these documents can be changed. So thank you for bringing us this subject.

Methods of Changing: Simply lining out the son-in-law's name will probably work but it is not the recommended method. Usually, you should have your attorney prepare for your signature an amendment (typically a short and separate document) to your Trust.

Margin Notation: You may wonder why the amendment method is better than the cross-out approach. I recall being asked to review a Living Trust where an individual had made a change by the latter technique. The client had also made a notation in the margin that so-and-so was not to inherit. This deletion and notation had been made on the copy of the Trust and not the original. Also, the deletion and notation was not signed or initialed. Did the Client make these changes or did someone else in the family do it. And if the Client did make the changes, does the fact that the changes were made on the copy and not the original indicate that the Client was just thinking about making these changes but hadn't fully made up his mind yet?

Paragraph Deletion: I recall another case where the Client had made numerous changes on his Trust. The Trust had originally been prepared by a knowledgeable and competent attorney. But apparently the client didn't want to pay the attorney to make changes. So he simply lined out many paragraphs and wrote in what he wanted in the margins. One paragraph that he lined out indicated that the Trust could be amended and revoked (changed) only while the client was alive. By lining this paragraph out, did the client mean that the Trust could be changed after he was gone or that it could no longer be amended even while he was alive?

Either interpretation could present huge problems. The former could create family disputes by changing inheritances even after the client died. The latter would prevent the client from doing what you now wish to do, changing the beneficiaries named in his Trust to inherit from him.

What You Pay the Attorney For: Unless you are intimately familiar with your Living Trust and the law itself, you don't know what the ramifications may be by deleting a particular paragraph or changing the wording of a provision. Invest the money and have your attorney advise you on any changes you think you might want to make. Oftentimes, it's quite inexpensive. Remember, you're not paying him for the typing of the changes; you're hiring him to advise you on the effect of your suggested changes and the proper way to put the modifications into effect.

Please keep in mind that no two sets of circumstances are identical and that the answer to any legal problem may change drastically based on even a slight change in the circumstances.