Possible Ways to Enforce or Invalidate Changes to Trusts

Changes in life may also require changes to trusts. For example, when couples marry or divorce, they may wish to change their distributions so that their spouse or ex-spouse is or is not a beneficiary.  Making changes to a trust so that a court can enforce such modifications requires that the proper legal process is followed.  

 

Changes to Trusts: Revocation

Generally, California Probate Code § 15401 governs the revocation of a trust, which allows a trust to be revoked either by (1) a method described in the trust or (2) if no method is described, then the probate code provides that a trust can be revoked by a writing “signed by the settlor or any other person holding the power of revocation and delivered to the trustee during the lifetime of the settlor or the person holding the power of revocation.”  This second part is known as a default provision and exists in the probate code in case the trust is silent as to how a trust can be revoked.

 

Changes to Trusts: Modification

California Probate Code § 15402 governs the modification of a trust.  This section states: “Unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation.”  An open question, recently explored in the California Supreme case Balistreri v. Balistreri, is how to modify a trust when the trust has a procedure for revocation and modification.

 

Exclusive Methods for Revocation or Modification

The Court in Balistreri explained that in the absence of an explicit method of trust revocation or modification, the default rule(s) under the probate code will apply.  However, when the trust specifies an exclusive method for how a trust can be revoked or modified, then that method must be used. Additionally, if a trust has an exclusive method of trust revocation, then that method also applies to trust modification so long as no specific method of modification is stated in the trust.

In Balistreri, the trust included an exclusive method to be used for modification – the modification must be notarized.  The Court explained that “regardless of whether the method of amendment is exclusive or permissive, and regardless of whether the trust provides for identical or different methods of amendment and revocation – section 15402 provides no basis for validating an amendment that was not executed in compliance with that method.” The Court explained that the plain meaning of California Probate Code § 15402 requires that if a trust instrument has an exclusive method for modification, that method must be followed for a valid modification. In Balistreri, the court invalidated the purported amendment because it was not notarized.

 

Fix Improper Trust Changes with Gokal Law Group

Making changes to a trust requires that the correct method be employed.  If you are concerned that a loved one made changes to a trust that are improper or invalid, the legal team at Gokal Law Group, Inc. are experts in trust and probate law.  Our firm helps families both protect and contest wills/trusts so that they can stay focused on grieving and moving on with their daily lives. Seeing as these types of cases are very sensitive and occur during difficult times, our team at Gokal Law Group, Inc. treats them with great respect and care.

Gokal Law Group is a family firm that treats our clients as if they’re our own flesh and blood. We fight for our clients as we would our own children, sisters, brothers, and parents. We are our clients’ warriors, fighting to bring them justice and ultimately right the wrongs they have endured.

Each attorney has a specific practice area for which they are tried, tested, and battle-ready. Each has vast years of experience in their practice area, providing them the knowledge, skills, and vision to fight and win. Learn more about Gokal Law Group, and reach out to our offices for assistance in enforcing or invalidating changes to trusts.

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