We encounter situations in which people amend trusts when they don’t have the ability to do so. It’s very important when you first get a trust to look at the amendment and revocation provisions of that trust.
In the amendment provision, you’ll see how the settlors envisioned any amendments to the trust. In some cases, the settlors decided that when the first spouse dies, no amendments can be made whatsoever. Other versions of the language will say that the surviving spouse has the ability to amend his or her share of the community property in the trust.
There’s even a further set of provisions where the surviving spouse can amend anything and everything. That’s usually in situations where couples have been married for 30, 40 or 50 years and generally they only have one set of children. It’s not a mixed or blended family. Both settlors, the trust creators, feel comfortable with the idea that the surviving spouse between the two of them, can amend anything and everything involving the trust, including revoking it.
Three Basic Provisions
Keep that in mind. There are three basic provisions. Number one, no revocation after the first spouse dies. Got to look to the terms and see if it says that. The second is, the survivor can amend only HIS or HER one-half of the community property, and of course any separate property that he or she may have in trust. The third provision, which a little unusual to see, allows the surviving spouse to amend anything and everything.
It’s important to look at the amendment provisions.