Legal Question in Wills and Trusts in California
My questions is about a California Revocable Living Trust for a married couple. The wife has passed away and the surviving husband wants to amend the trust to change the distribution and the successor trustees. Does he have a right to do that? The actual wording from the trust follows:
[Article 4
Settlors' Rights to Amend, Change or Revoke the Trust Agreement.
Either Settlor may, during the joint lives of the Settlors, by signed instruments delivered to the Trustee: (1) withdraw the community estate from this Trust in any amount and at any time upon giving reasonable notice in writing to the Trustee and to the other Settlor; provided, however, that all or any part of the community estate withdrawn by either Settlor shall be conveyed and delivered to both Settlors as community property; (2) withdraw the separate estate contributed by such Settlor from this Trust in any amount and at any time upon giving reasonable notice in writing to the Trustee; (3) add separate property to the Trust.
Both Settlors may, during their joint lives, by signed instruments delivered to the Trustee: (1) withdraw the community estate from this Trust in any amount and at any time upon giving reasonable notice in writing to the Trustee; provided, however, that all or any part of the community estate withdrawn by the Settlors shall be delivered to the Settlors as community property; (2) add community property to the Trust; (3) change the beneficiaries, their respective shares and the plan of distribution; (4) amend this Trust Agreement in any other respect; (5) revoke this Trust in its entirety or any provision therein; provided, however, the duties or responsibilities of the Trustee shall not be enlarged without the Trustee's consent nor without satisfactory adjustment of the Trustee's compensation.]
It does not say anything about amending after one spouse has died. It is in AB Trust. The Surviving Spouse's share of community property and his separate property goes to Trust A. Predeceased spouse's property gets divided into Marital Share and Trust B.
3 Answers from Attorneys
I can not say for certain without reviewing the whole documents, but usually the surviving spouse can change the distribution of the Survivor's Trust (Trust A, which also remains revocable) but not of the Bypass Trust (Trust B, which is irrevocable). Some trust instruments give the surviving spouse a special, or limited, power of appointment over the Bypass Trust, allowing some changes in the distribution of that irrevocable trust.
I agree with Ms. Cusack. Usually with an AB trust, the A trust can be amended by the surviving spouse during that spouse's lifetime, but the B trust cannot be amended, and has become irrevocable.
You need to have an estate planning attorney lawyer look at it and handle the amendment -- don't try to do the amendment yourself, there are many traps and minute details that can inadvertently affect what you, or the original settlor, are trying to accomplish.
Check out my website: www.CaliforniaLegalSolutions.com
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