Amending and Revoking Wills and Trusts

Thinking about death and the people left behind is not a topic likely to find many takers, but death is the one event in life that no one is able to escape. Additionally, when a person is young and healthy, thoughts of illness and death seem so far away and unrelated to where they are that anything bad happening seem impossible. Unfortunately, bad things happen to people everyday, which is why is it important to establish an estate plan as soon as you have assets to distribute to surviving family and friends. Further, in addition to distributing property, documents like wills and trusts bring peace of mind and clarity to the family of the deceased so they are not left second guessing what the deceased wanted. While setting up an estate plan at an early age is good proactive planning, things change over time, and events may happen that could prompt a person to consider changing the terms of a will or trust. The law recognizes this reality and has provisions that lay out when and how a person may amend or revoke a will or trust document. A recent article in the Sarasota Herald Tribune discussed the will of famed circus founder and philanthropist John Ringling and illustrates the possible pitfalls amending or revoking an estate plan can present, which may not be obvious at first glance. An overview of the basics of amending or revoking a will or trust will follow below, but all such decisions should be discussed with an estate planning attorney to ensure the wishes of the creator are legally viable.

Revoking and Amending a Will

Amending a will is a fairly simple process. It only requires the amendment, or codicil, be executed with the same formality required for a will. This means the codicil must be signed at the end by the creator in front of two witnesses. Revocation, on the other hand, can present some complexities. First, revoking a will occurs in one of two ways – through a writing or a physical act. While revoking a will by issuing another written document may seem fairly straightforward, and it is if you expressly revoke an earlier will or codicil in writing, it is also possible to inadvertently revoke a will and completely undo the original intention. This happens when another will or amendment is issued that is inconsistent with an earlier version. In this case, the document that was created later is given preference and any inconsistencies within wills or amendments drafted in the past will automatically be revoked. This legal possibility is the reason why estate planning attorneys should be involved in this process. Additionally, revocation can happen through a physical act by intentionally burning, tearing, canceling, defacing, obliterating, or destroying the actual document by the creator or in the creator’s presence and at his/her direction.

Trusts

There are many different types of trusts, but they fall into two general categories – revocable and irrevocable. Many trust documents contain provisions for when and how it may be modified or revoked, but if these provisions are or lacking or unclear, Florida law has procedures to cover these situations. Modifying an irrevocable trust can occur via a court order or by an agreement of the trustee and beneficiaries that modification is appropriate. The non-judicial modification is only available after the party who created the trust dies. Otherwise, the trustee or beneficiary must petition a court that has the authority to amend or terminate the trust if the purpose of the trust is no longer possible as originally executed. Finally, a revocable trust can be modified or revoked by the creator at any time, and if there is more than one person funding the trust, each is entitled to amend or revoke to extent of his/her contribution.

Consult an Estate Planning Attorney

Creating, amending, or revoking any estate document typically has repercussions that extend beyond the original intent. Working with an experienced estate planning attorney can eliminate any unintended consequences and ensure your wishes are realized to the fullest extent possible. The Tampa law firm of Bubley & Bubley, P.A. can help you navigate these legal issues. Contact us to schedule a consultation.