Tuesday, March 12, 2013

Estate Planning Lawyer Outlines the Benefits – and Risks -- in Amending Your Will or Living Trust in California


Estate planning documents such as a will or living trust are not manuscripts written in stone, so to speak.  Either the whole or parts of it may be changed.  In fact, if you already have a will or living trust, you should periodically review these documents and have these updated to meet your current life situation.  One of your beneficiaries may have passed away, so you would have to remove his name from your will or living trust.  Or you may divorce your partner and marry again.  That means reviewing your list of beneficiaries.  Or you may experience an unexpected financial windfall.  You then may want to include new items in your estate to your will or living trust.

Yes, you should periodically update your will or living trust.  And when you do so, you should always ask the assistance of your estate planning attorney. 

                As mentioned earlier, it is easy to make changes in your estate planning documents.  You can, for example, execute a new will.  By doing so, you are now presumed to have revoked your previous will.  In other words, your previous will is no longer valid and cannot be enforced.   Still, to be safe, you may as well include a phrase in your new will which says, “I revoke all [previous wills” or similar phrases. Such phrase will have the effect of having the latest will supersede all past wills.

                You do not have to change the entire will if you only wish to change a part of it.  In the latter case, you can simply execute an amendment or a codicil.  Since the amendment only pertains to part of the will, the codicil must make specific references to the present and still valid will. Just like a will, to be valid, a codicil must be signed in the presence of witnesses and must be notarized.  

                Likewise, you can make amendments to the terms written in your living trust.  You can simply put an amendment to the terms of the initial trust.

                The ease in which you can execute changes in your living trust or will can be deceptive though.  To ensure that your amended or updated estate planning document in California is valid, talk to your estate planning attorney.   He will probably advise you against such practices as crossing out words or sections in the document or inserting marginal notes on the will.  Especially in the case of wills, doing such things can make your document confusing and vague.  It thus invites parties to contest your will.  And contesting a will takes place only after your death.  Just when you thought your amended or revised estate planning is valid, then things go awry for your loved ones – at a time when you cannot do anything about it.

                So it is always better to be on the safe side, legally speaking.  In California, when contemplating changes or amendments in your living trust or will, consult first your estate planning attorney.