Handwritten Amendments To Estate Planning Documents: Last Minute Changes

Many individuals may believe they cannot amend their estate planning documents without involving an attorney. While this is not entirely true, it is extremely discouraged because any such amendments can be very ambiguous and incomplete, and subject your estate to litigation. However, you may not have the opportunity to contact an attorney to amend your documents if your medical condition is grave. If this is the case, an “emergency” handwritten amendment to your trust or will may be desirable.

Anyone can change the terms of their will by signing an amendment (an amendment to a will is referred to as a codicil). Generally, wills do not specify the requirements for executing a codicil, as this is governed by the California Probate Code. A codicil can be typed out or written by another person, but if this is the case it must be signed and dated by the testator (person who creates the will) in the presence of 2 disinterested witnesses, who must also sign and date the will. An accompanying “attestation clause” is also recommended. A holographic codicil can also be executed, which is a codicil that contains the material provisions in the testator’s handwriting. A holographic codicil does not have to be signed in the presence of any witnesses, but must be signed and dated by the testator.

Amendments to a trust must comply with the terms of the Trust. However, if a modification of trust procedure is not explicitly exclusive in the trust, or if the provisions for amendment are not so specific and detailed that they implicitly preclude any other method, then a modification may also be accomplished by following statutory law. In California, Probate Code § 15401(a) indicates that a revocable trust may be revoked in whole or in part by compliance with any method of revocation provided in the trust, or by a writing (other than a will) signed by the settlor (creator of a trust) and delivered to the trustee during the lifetime of the settlor.

In summary, a trust may be modified by strict compliance with the terms of the trust. However, if the terms of the trust regarding modification are not explicitly or implicitly exclusive, then a trust can be modified by the method provided for revocation in the trust, or by a writing (other than a will) signed by the settlor and delivered to the trustee. A will may be amended by executing a regular or holographic codicil.

Although you should always seek the advice of a qualified attorney to ensure your amendment complies with the law and is unambiguous, if you are unable to amend your trust or will through an attorney you may consider a handwritten amendment. If you have any questions about estate planning, please do not hesitate to contact the Law Offices of Tyler Q. Dahl.

Disclaimer: This material was prepared for general informational purposes only, and is not intended to create an attorney-client relationship and does not constitute legal advice. This material should not be used as a substitute for obtaining legal advice from an attorney licensed or authorized to practice in your jurisdiction. You should always consult a qualified attorney regarding any specific legal problem or matter.