A revocable living trust is an intangible entity that serves as a means of transferring property after the death of the trust creator. Unlike a person, a revocable trust does not die, so probate is generally not required when handling a trust. A key benefit of a revocable trust is the ability of the trust creator to amend it. Depending on the circumstances, the signing of an amendment may or may not require witnesses and/or notarization. When in doubt as how to proceed, an estate planning attorney should first be consulted.
Notarization and Witnesses
The signing of estate planning documents, including revocable trusts, are frequently witnessed and the signatures notarized as a matter of custom. Most states do not require either for creating or amending a living trust. Although there may be no such requirements under state law, it is a good idea to at least have the document notarized. A revocable trust document usually specifies the method by which it can be amended. For this reason, the language of the trust that allows for amendment should be reviewed carefully. If the trust document requires witnesses and/or a notary public, failing to abide by these requirements could render the amendment ineffective.
Revocable trusts are often created in conjunction with a separate document called a pour-over will. Only the property held by the revocable trust passes to the beneficiaries of the trust. Some assets, such as checking accounts and automobiles, are not transferred to the trust. Some banks, in fact, will not change the title to a checking account to reflect a trust. A pour-over will is designed to automatically transfer any assets that were not included in the trust into the trust upon the death of the trust creator. Unlike with a revocable trust, witnesses are required for most wills. Unless a state law says otherwise, the signature need not be notarized, however.
Updating the Pour-Over Will
A pour-over will incorporates the terms of the trust when the will is signed. Amending a revocable trust, by definition, changes the terms of the trust. As a result, the pour-over will refers to a trust that no longer exists. In this event, the will could fail to transfer items into the trust. To ensure that the will reflects the amended trust, either a new pour-over will should be signed (and witnessed) or the will should also be amended (and witnessed) to reflect the amended date of the trust.
Witness Attestation Clause
If witnesses are used for the amendment, the witness signature page should include a witness attestation clause to minimize the possibility that a court will require the presence of the witness to answer questions about the signing of the amendment page. An attestation clause is language included on the witness’ signature page that describes the circumstances surrounding the signing of the amendment, such as the date of the signing, whether the person amending the trust appeared to understand what he or she was doing, and whether the witnesses watched the signing of the amendment.
- Drafting California Revocable Trusts; Continuing Education of the Bar
- Make Your Own Living Trust (8th Edition); Denis Clifford