In short, yes. No matter how carefully you craft your estate plan—Wills, trusts, powers of attorney—life is full of changes. Estate planners should periodically review their documents to ensure their goals are still being fulfilled. If planners need to update, modify, or revoke their estate planning documents, there are procedures available to do so while the planner has capacity. The exact procedure to be used, however, depends on the document.
The Last Will and Testament is the most common type of estate planning document. A Will can direct assets of the testator (estate planner) to go to specific beneficiaries and name an executor (personal representative) to handle the probate process. When you need to modify a Will, you may execute a codicil.
A codicil is an amendment to a Will. After determining the necessary changes and writing the codicil, California testators need to sign the document in front of two witnesses and attach it to the Will. Testators may revoke a Will in California by making a new one or physically destroying the old one.
There are many different types of trusts. Many trusts are revocable and living, which means modifying or revoking them is relatively simple as long as the settlor (creator of the trust) has capacity. In many cases, creating and signing a trust amendment is sufficient for modifying a revocable living trust. Settlors should consider implementing accepted procedures for changing revocable living trusts in the trust itself.
Conversely, many trusts are classified as irrevocable. If the settlor is alive and has capacity, though, irrevocable trusts may be changed in rare circumstances. The beneficiaries might unanimously agree to change the trust. In other cases, the court might approve a change to an irrevocable trust if the settlor’s goals would be better served by the change.
Testamentary trusts go into effect when the estate planner passes away. Testators usually create these trusts by inserting a provision in the Will. As a result, the most effective way to revoke or modify a testamentary trust is to execute a codicil.
Modifying Powers of Attorney
A power of attorney authorizes an agent (attorney-in-fact) to perform certain actions or make certain decisions on behalf of the principal. A principal can usually revoke a power of attorney by informing the agent(s) in writing. Or, if the power of attorney mandates a particular modification or revocation method, the principal must follow that method.
Speak to an Attorney Before Changing Your Estate Plan
In many cases, crossing out sections in your Will, trust, power of attorney, or other estate planning documents is not sufficient. If you do not speak to an attorney about your estate plan, your goals might not be met. The best way to ensure your estate plan works for you and your family is to consult an experienced California lawyer. The team at Anthoor Law Group would be happy to speak with you over a consultation; reach out today to set it up
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