March 26, 2009

Ask The Lawyer

How to modify a revocable trust

This week's question:
I have been doing some reading about living trusts. It seems to me that they have many advantages when it comes to estate planning, like avoidance of probate and minimizing, if not eliminating, estate taxes. I just have one concern. Exactly how does a person like me cancel the trust if I change my mind? After all, it’s best to keep one’s options open because of changing times and circumstances.

Kevin K.
Almaden Valley


Dear Kevin,
It certainly is best to keep one’s options open because of changing times and circumstances. And that’s one of the many positive aspects of a living trust or revocable inter vivos trust. By the way those terms are used interchangeably.

The term “revocable” by its very nature implies that the trust is capable of being changed or even cancelled at any time. Most trusts are changed very little as the years go by, but it is possible to change or revoke the trust entirely if certain steps are taken. You may want to see your own attorney for advice in this area.

In fact, California Probate Code §15400 provides that a trust is presumed to be revocable. That law provides:

“Unless a trust is expressly made irrevocable by the trust instrument, the trust is revocable by the settlor. This section applies only where the settlor is domiciled in this state when the trust is created, where the trust instrument is executed in this state, or where the trust instrument provides that the law of this state governs the trust.”

The term “settlor” is basically the same as “creator” of the trust. More jargon: the “trustee” is essentially the money manager of the trust and the “beneficiary” is the person or entity that is named to receive the gift.

Now, how does a person revoke a revocable trust? Almaden Valley residents would need to follow California Probate Code §15401. That provision entitled “Method of Revocation by Settlor” states:

“A trust that is revocable by the settlor may be revoked in whole or in part by any of the following methods:

(1) By compliance with any method of revocation provided in the trust instrument.

(2) By a writing (other than a will) signed by the settlor and delivered to the trustee during the lifetime of the settlor. If the trust instrument explicitly makes the method of revocation provided in the trust instrument the exclusive method of revocation, the trust may not be revoked pursuant to this paragraph.

If the trust has two settlors, such as a husband-wife trust, how can the trust be revoked? The answer to that question is found in §15401(b):

“Unless otherwise provided in the instrument, if a trust is created by more than one settlor, each settlor may revoke the trust as to the portion of the trust contributed by that settlor, except as provided in §761 of the Family Code [dealing with community property].”

If you already have a living trust and you are involved in marital dissolution or separation proceedings, you will want to consult with your own attorney to review the interrelationship of trust law and family law issues if you are considering a revocation.

These principles were discussed in a 2008 Ventura County case in the Court of Appeal for the Second Appellate District. The case is entitled Joette Masry, as Trustee v. Louis Masry as Cotrustee. In that case, the court held that the revocation of the trust was proper, the revocation provision in the trust was not explicitly exclusive, and that the method of revocation complied with Probate Code §15401, quoted above.

You can read the entire Masry v. Masry case for yourself. You can bypass incessant advertising by entering the California Courts of Appeal in the search box. Then enter Second District followed by “Searchable Opinions 1850 to present.” After you agree to the terms of the Web site, enter California Courts and Masry v. Masry.

One can also read about the California Probate Code provisions discussed above. Once again, if you want to avoid a barrage of advertising and “support” links, go to the California Courts of Appeal Web site mentioned above. After you agree to the terms of the Web site, enter “Read Unannotated California Codes”, followed by California Probate Code and then 15401.

If the above steps work, the information should be on your monitor in less than five seconds.

As always, you will want to review this information with your own attorney to see how these provisions may or may not apply to your own particular situation.

Donald J. DeVries
Almaden Valley


Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. To view Almaden Times columns since 1986 visit www.almadenvalleylawyers.com. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.