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.

  • Mike

    A revolvable trust was done in 1996, It was revoked by the trustor in 2010. 10 months later the new attorney transferred all the assets from the OLD revoked 1996 trust to the new trust. Since that 1996 trust was revoked and did not exist, were those transfers legal? There was no records of, lets say the house going from “the 1996 Trust” to the Individual” and then from the “Individual” to the “New 2010 Trust.” The only thing we see is assets going from: :1996 Trust” to 2010 Trust” Is there any probate code that explains how these transfers are supposed to me done?

    Mike

    • davidsonkeitha

      There is nothing illegal about transferring assets out of a revoked Trust even after the revocation is signed. While the Trust was revoked, the assets still needed to be transferred out of the Trust, which is an administrative function that a Trustee can take at any time, even after revocation. And there generally is no problem with transferring assets from an old Trust into a new Trust if that is what the Trust creator (the Settlor) wants done with the assets. There is no specific Probate Code section that walks you through this type of situation, but basically the assets belong to the Trust settlor so long as the Trust remains revocable and he/she can direct that they be transferred to anywhere after the 1996 Trust is revoked. Keep in mind, that if the Settlor lacked capacity or was unduly influenced, then there might be a problem with these asset transfers. But the mere fact that assets were transferred out of the 1996 Trust after it was revoked does not make the transfers illegal.

  • PS

    I need to revoke a California revocable living trust that includes real property, and then create a new revocable living trust that holds the same real property. Can I create the new trust, then transfer the real property directly from the old trust to the new trust, then revoke the existing living trust? Or do I need to transfer the real property to myself from the existing trust, then revoke the existing trust, then create a new revocable living trust into which I transfer the real property from myself to the trust? In other words, can I for a short time have two revocable living trusts in order to transfer real property directly from one trust to another to avoid the cost of two transfers?

    • davidsonkeitha

      I have done both methods when creating a new Trust, there is not one correct way. There are, however, tax issues that might drive the decision to transfer the property directly to the new Trust or have you distribute it to yourself first. There could also be reasons to do so under the Trust terms. You really need to sit down with a lawyer on this one and get some advice on what’s best for your situation.