Legal Question in Wills and Trusts in California

Re: Can a codicil modify a trust?

You are correct that they are two different instruments. To be part of a Trust, real property must have its title transferred to the Trust, which means it is no longer owned by your brother. Therefore, it is not part of his estate when he dies so what his Will says is irrelevant [Trust are set up in part to reduce the assets in the estate s less in the way of estate taxes are paid]. A Will can only effect how a transfer occurs as to property owned by the deceased right at the time of death. The fact that a major portion of the codicil is ineffective does not prevent the rest of its terms from being applicable. So your sister does appear to be excluded from getting any of the property, assets not in the Trust.

Re: Can a codicil modify a trust?

Yes, the will and trust are two separate documents. You CAN generally modify either one. A codicil typically refers to addition to or modification of a will.

Of course, what effect the codicil might have will depend upon what assets were already held by the trust versus what assets were NOT held in trust.

Depending upon the amount of assets that were owned by your brother I think you should consult with an attorney and have the documents reviewed to determine the likely effect, if any, of the codicil.