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Trust Modifications and Revocations

Under the current law, trust amendment or modification is governed by Probate Code section 15402, which states that, unless the trust instrument provides otherwise, if a trust is revocable by the settlor, the settlor may modify the trust by the procedure for revocation. This means that the terms provided in the trust instrument primarily determines the method of modification. Correspondingly, the trust may only be modified in the same manner it may be revoked if the trust instrument is silent on the method for trust modification.

Meanwhile, trust revocation falls under the provisions of section 15401, which provides that a revocable trust can be revoked, in whole or in part, in any manner provided in the trust instrument. The trust may also be revoked by an instrument in writing, signed by the settlor and delivered to the trustee during the lifetime of the settlor, unless the method of revocation provided in the trust instrument is explicitly exclusive. In which case, the trust can only be revoked in accordance with the method provided in the trust instrument. A revocation method is deemed exclusive if it is sufficiently detailed or specific.

Prior to the enactment of sections 15401 and 15402, trust revocations were governed by former Civil Code section 2280. However, there were no statutes that specifically addressed trust modifications. Accordingly, the rules governing trust revocations were applied to trust modifications. When the Legislature enacted sections 15401 and 15402, it made a distinction between trust modifications and revocations. The enactment of two separate sections signified the Legislature's intention to apply different sets of rules for trust revocation and modification.

*This blog entry was not written by an Attorney and should not be construed as professional legal advice.

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