Following the passing of a relative or friend, the search begins to discover if the decedent had any estate planning documents. Obviously this process is easier if the decedent previously told their family and friends that they executed estate planning documents and where to find the documents. Regardless, the documents need to be retrieved and authenticated in order to properly administer the estate.
The estate planning documents could be found in a safe deposit box, at the decedent's home or some other place. Usually all the documents are found in one place. So if one document is found, e.g. the trust, it should be expected to find the will in the same place as well.
Some attorneys (I'm not one of them) provide clients with an estate planning binder. The binder will contain all the estate planning documents, i.e. trust, will, power of attorney, etc. Occasionally I will see that the binder contains preprinted forms to amend the trust or modify the will. Fortunately I've not had a case where the estate planning binder contained an amendment of questionable validity. In a recent unpublished decision, the successor trustee encountered this issue.
"Yvonne created the Yvonne Ellias Living Trust (Trust) in 2007. She amended the Trust in 2018, naming her stepdaughter, Veronica Ellias, as trustee. Section 1.04 of the Trust provides: "Any amendment, restatement, or revocation must be made in writing and delivered to my then-serving Trustee." Yvonne passed away on February 20, 2021. The Trust became irrevocable upon her death.
Yvonne purportedly amended the Trust twice more before she died, in June 2019 and July 2020. The amendments purportedly redistributed Yvonne's assets, including her home, from Veronica to David upon Yvonne's death. Veronica discovered the amendments after Yvonne died, inside a binder containing the original estate planning documents."
The appellate court affirmed the trial court's ruling that the purported amendments were invalid.
"Here, section 1.04 requires any modification of the Trust to be "delivered to [Yvonne's] then-serving Trustee." (Italics added.) Thus, as David concedes, for Yvonne to validly amend the Trust pursuant to its terms, she was required to deliver the amendments to Veronica. But Yvonne did not do so when she purportedly executed the Trust amendments or at any other point before she passed away. Nor is there evidence that Veronica had access to Yvonne's estate planning binder before her death such that the amendments were "effectively" delivered to her, as suggested by David. Yvonne therefore could not have amended the Trust pursuant to its terms. (See Lombardo v. Huysentruyt (2001) 91 Cal.App.4th 656, 670 [trust modification ineffective if trust requires delivery of modification to trustee and settlor fails to inform trustee of modification].)"
Estate of Ellias, Ventura County Superior Court case no. 56-2021-00556111-PR-TR-OXN
