We spend a great deal of our time as Trust and Will lawyers pleading with people to create a Will or a Trust as part of their estate plan. But we rarely discuss how to get rid of those documents if the need ever arises. The process, called “revocation,” can be a bit more difficult than you might think.
Revoking a California Will
Will revocation is an area of the law unto itself. In California, there are two options to revoke a Will: (1) create a new Will that specifically revokes the old one, or (2) destroy the original Will by a physical act. The options for revoking a Will can be found at California Probate Code Section 6120.
Revocation by a New Will
The first option is the easier and most used of the two. Whenever you create a Will you typically will find language at the beginning of the documents that says something to the effect of “I hereby revoke all prior Wills.” This simple sentence is enough to revoke a prior Will; PROVIDED THAT, the new Will is signed with all the proper formalities required of a valid California Will. In other words, a new, valid Will can revoke a prior Will.
This is true even if the above sentence is not included in the new Will, if the new Will makes provisions that are different and conflicting with the first Will. So if you give your diamond ring to your daughter in Will one, but then create a new Will leaving the same ring to your son, then the new Will controls and effectively revokes the gifts in the prior Will. Of course, you never want to rely on an inconsistency—it’s far better to clearly state what you want to have happen to the first Will.
Revocation by Physical Act
A writing is not the only way to revoke a California Will. You can also do so by a physical act, such as burning, tearing, canceling, obliterating or destroying the Will. The catch is (1) the physical act must be done by the Testator (that’s the person who created the Will), or at least in the Testator’s presence and at his or her direction. Once the physical act takes place, the Will is revoked.
Revoking a California Trust
Revocation of a Trust is a bit different from a Will. And Trust revocation always starts with the Trust document itself because most Trust documents state the method of revocation.
For example, a very common provision in a Trust allows revocation using the following language: “I reserve the right to amend this Trust by a signed writing delivered to the Trustee.” That sentence, simple as it is, provides the basis for an amendment. If the Trust is silent as to amendment, then the probate code provides the method to revoke at Section 15401(a)(2), which is a writing (other than a Will) signed by the settlor and delivered to the trustee—a very simple requirement. Notice that the writing does not have to be notarized or witnessed, it just has to be a writing, signed by the Settlor and delivered to the Trustee.
Of course, a Trust can also be revoked as to a particular piece of property by the Settlor’s act of taking the property out of the Trust. For example, if I create a Trust and transfer my house into the Trust name, I can revoke the Trust as to that asset by filing a new deed transferring my house out of the Trust. The Trust then ceases to act over that asset. That doesn’t necessarily mean that it won’t get put back into the Trust at some point, but once transferred out of the Trust, the Trust no longer controls that assets.
The bottom line: revoking a California Will or Trust is not difficult, but there are a few hoops to jump through if your going to do a proper revocation.