Legal Question in Wills and Trusts in Arizona
amending trust etc.
Questions regarding a Rev. Trst between husband and wife(titled ''the X [husband] AND X [wife] rev. trust'') Both spouses signatures are simultaneously notarized to the Trust. A part reads:
''The Settlors have the power at any time or times during his or her lifetime to amend or revoke the trust provided both Settlors are still living.''
Is this provision legal? Is the language sufficient to uphold the intent that once one spouse dies, the terms remain unchanged? Can such a clause be successfully challenged by a disgruntled heir, who might wish to see Trust amendments after the death of a Settlor?
What if, any, is the benefit of recording a ''certificate of Trust?''I thought a Trust was for privacy, so why do people record this aspect? If recorded, can it be done after the death of a Settlor?
The clause ''...if either Settlor is unable or unwilling to serve as Trustee(s), or unable to manage his affairs then the...Successor Trustee...'' Does successor need a POA in conjunction with this clause to serve? Can successor serve w/out a POA if Trustee is ill in bed with the flu and can't tend to affairs for the week?If an eviction was needed, and Trustee couldn't make it,would the Successor be able to legally attend the proceeding?
1 Answer from Attorneys
Re: amending trust etc.
It is a common provision that a trust becomes irrevocable, and cannot be amended after the death of the first spouse dies. These provisions are enforced because the trust was jointly made and reflects the agreement of each party, acting in reliance upon the agreement of the other spouse, to carry out their wishes as provided in the trust agreement. A disgruntled heir would be out of luck.
Yes, a certificate of trust is usually not recorded as trusts are private agreements. However, the certificate is just a summary and does not give specific provisions, it serves to give notice to creditors or others dealing with the trustee, that the trustee has authority to act on behalf of the trust. There is no legal effect of recording the certificate. Recording may be done at any time.
The successor trustee takes over as trustee when it is determined that the initial trustee is unable to carry out the duties of trustee or resigns, as provided in the trust agreement. Just because a trustee has the flu, does not give rise to the successor trustee taking over. The successor trustee becomes trustee when the provisions of the trust agreement take effect. No power of attorney is required, the trust agreement gives authority to the successor trustee to act.
The trustee, in most trust agreements, has the authority to hire agents, attorneys, cpa's, etc. to act on behalf of the trustee and the trust, to carry out the business of the trust. To carry out an eviction, you or the trustee would be well advised to hire an attorney.
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