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The Best Way To Amend Estate Planning Documents

Jean opened the envelope that contained her aunt’s will and began to laugh.

“Oh, Aunt Sarah. You and your post-it notes.” She shook her head. Jean pulled out the document. The entire front page was covered in small yellow squares of paper. “Guess she changed her mind, a few times.”

Her sister, Joan, frowned. “What a mess. How are we supposed to figure out what all of that means? Aunt Sarah abbreviated everything and her handwriting is atrocious.”

Jean studied the notes attached to the document. “Not sure she even wrote all of these notes. Some of them don’t even look like her handwriting. And some don’t make much sense.” She pointed to one yellow note. “Look at this one. It says, ‘Take out Hal and insert Jordan.’ Who’s Jordan? Insert him into what?” She pointed to another. “This one says, ‘Amend trust to include Ruthie.’ I thought Ruthie was her dog. You know, the one that died ages ago?”

Joan shrugged. She began to pull the notes off of the document.

Jean gasped. “What are you doing?”

“I’m going to put all of the notes in a separate envelope so they don’t get lost. But first, I’ll go through them and throw out the ones that are illegible or make no sense. That will make probating the will easier.”

“Are you sure that’s even legal?” Jean asked. “I don’t think you should throw anything out.”

Joan rolled her eyes. “If any of those notes were really important, Aunt Sarah would have gone to her lawyer and had her will amended.”

Jean sighed. “We’re probably going to have to take this to a lawyer anyway, just to figure out what all of these notes mean.” Jean groaned. “Probate is going to take forever.”

Actually, those notes may not matter. Under California law, specific procedures must be followed to legally change estate planning documents. Those procedures ensure that the changes are intended by the maker of the will or trust.

For example, changes to a will must be made either by executing a codicil—a written document that supplements, explains, modifies, or revokes part of a will– or a new will. Both documents must be signed by the Testator and witnessed by at least two other people. However, California law no longer requires that those documents be executed by all parties at the same time.

Changes to holographic or handwritten wills do not require witnesses. Changes may be made directly onto the document. No further date or signatures are required. Any handwritten changes will be automatically incorporated into the original will.

California, trust documents must be amended in compliance with instructions contained within the trust. Usually, those instructions contain authorized reasons for amending the trust, as well as  appropriate procedures.. In the alternative, the instructions may be set forth in a separate document that is not a will and is not prohibited by the initial trust. In all cases, a trust must be amended in a writing that bears the settlor’s signature and then delivered to the trustee.

Death beneficiary designation forms, which are used to name primary and alternative beneficiaries to life insurance policies and retirement plans, usually require the completion of a preprinted form. In California, if community property is involved, changes to one spouse’s beneficiary designation must be accompanied by the written consent of the other spouse. Otherwise, the change in beneficiary applies only to the spouse’s one-half community property interest and any separate property interest in the policy or account.

In Hibernia Bank v. Wells Fargo Bank (1977) 66 Cal.App.3d 399, the court said trust amendment procedures were intended to protect settlors from their own “whim, caprice, momentary indecision, or of undue influence by other persons.” That’s why California courts strictly enforce the rules for changing all estate planning documents. A simple unsigned scribble on a post-it note won’t do.

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