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Can I change my mind??? How to determine if your Trust is revocable

Generally speaking, it is supposed to be easy to determine if a Trust is revocable. The California Probate Code says that any Trust that is NOT “expressly made irrevocable” is a revocable Trust (see Probate Code section 15401). That means every Trust can be changed, amended, or terminated altogether unless the Trust terms say otherwise.

But then nothing is ever quite that easy in California Trust and Will law. And much of the complexity comes down to what it means to “expressly” make a Trust irrevocable. In other words, what exactly does it take to give an expression of irrevocability?

For starters, you do not need to use the term “irrevocable” to make the Trust irrevocable. Trust law is looking to find the intent of the Settlor, did the words the Settlor used in the Trust document express an intent to make the Trust irrevocable? That intent can be expressed in any number of ways without using the word “irrevocable.” For example, if I create a Trust that says it cannot be revoked, then I have sufficiently expressed irrevocability without saying “irrevocable.”

But what if I say that the Trust instrument is revocable during the joint lifetimes of my spouse and I? Is that a clear expression of irrevocability after one of us dies?

Yes, so says the Court, because that language presumes that revocation can only occur during the “joint lives” of the spouses. Once one of them dies, the Trust can NOT be amended or terminated because the joint lives no longer exist.

That may seem like a funny result since the Trust language says nothing about irrevocability. But then again, the point is to interpret the expression of the Settlor not the exact words that are used per se. So even without using the term irrevocable, the Settlor can make a trust irrevocable based on the circumstances described in the document.

I suppose if I created a Trust that said it was only revocable during calendar year 2016, the Trust would become irrevocable on January 1, 2017. In describing the period of time when the Trust can be revoked, the Trust also defines when it cannot be revoked.

Most of the time, the revocation provision is something the Trust Settlor barely reads, and rarely understands. These provisions are included by lawyers or whomever drafted the document without much thought about how they will be interpreted and enforced in the future by the Court. And yet, once a dispute arises in Court, the language of the Trust document is presumed to be the actual expression of the Settlor, whether they knew it or not.

So maybe all that legal mumbo-jumbo is not so meaningless after all. It never hurts to read through your Trust’s revocation provision just to be sure you are not expressing something you did not mean to say.