Yes, you can generally revoke a testamentary trust by writing a new will, but it’s not always as simple as it sounds and requires careful consideration to ensure it’s legally effective.
What Exactly *Is* a Testamentary Trust?
A testamentary trust is created *within* your will and only comes into existence upon your death. Unlike a living trust, it doesn’t exist during your lifetime. It’s a set of instructions within your will detailing how your assets should be managed and distributed after you’re gone. This differs from a revocable living trust, which is established and funded during your life and can be amended or revoked at any time. Approximately 60% of Americans do not have an estate plan, which means the vast majority don’t even have a testamentary trust to consider! Revoking one requires a new will that explicitly supersedes the previous provisions, and simply omitting the trust language isn’t always enough.
How Does Revocation Work in Practice?
To revoke a testamentary trust, your new will must clearly state that you are revoking all prior wills and testamentary trusts. A common phrasing might be, “I hereby revoke all prior wills and codicils and declare this document to be my last will and testament.” It’s vital this language is unambiguous. Many people believe a simple deletion of the trust provisions suffices, however, that can create confusion and potential legal challenges. For example, a court may have to interpret the intent of the testator (the person making the will) leading to protracted and costly litigation. A well-drafted revocation clause leaves no room for interpretation, and is crucial to ensure your wishes are honored.
What Happens if I Don’t Revoke Properly?
I remember a case a few years back involving a client, let’s call him Mr. Henderson, who attempted to revoke a testamentary trust by simply crossing it out in his old will and writing “VOID” across the provisions. Sadly, that was not enough. After his passing, his family discovered his original will, and a lengthy court battle ensued. It was a painful and expensive process for everyone involved, as the court ultimately ruled the revocation was ineffective due to its informal nature. His estate suffered significant delays and legal fees, and his family received less than they had anticipated. It underscores the need for a professional touch when modifying or revoking estate planning documents.
Can I Revoke a Trust and Re-Establish it Later?
Absolutely! You can revoke a testamentary trust in one will and then create a new one in a subsequent will. This is quite common as people’s circumstances and desires change over time. The key is to clearly state the revocation of the old trust and then explicitly outline the terms of the new one. I had a client, Mrs. Alvarez, who initially included a testamentary trust for her young grandchildren. Years later, her financial situation improved, and she wanted to create a more robust trust with more specific instructions for education and healthcare. We drafted a new will that clearly revoked the old trust and established a new one tailored to her updated wishes. It was a seamless transition, and her grandchildren were well-provided for thanks to the careful planning. This highlights the flexibility and importance of regularly reviewing and updating your estate plan. Roughly 33% of Americans report they have an estate plan, but have not reviewed it in more than 5 years!
“Estate planning is not about death, it’s about life.” – Ted Cook, Estate Planning Attorney
Who Is Ted Cook at Point Loma Estate Planning Law, APC.:
Point Loma Estate Planning Law, APC.2305 Historic Decatur Rd Suite 100, San Diego CA. 92106
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