Posts Tagged ‘revocatory act’

How To Revoke Your Revocable Living Trust, Will or Power of Attorney

AUGUST 8, 2011 VOLUME 18 NUMBER 29
Last March we told you a good story about revocation of a living trust, though we cautioned you not to use the same method. A year before that we told you about another colorful character and how he revoked his will. Both of those court cases made us scratch our heads about the behavior of the individuals, but it occurs to us that we might never have told you what you should do to revoke your will or trust. Let us take care of that oversight now.

Please remember that we only practice law in Arizona. What works here might not work, or might not work exactly the same way, elsewhere. Your best bet is always to talk with a competent local attorney about how (and whether) to revoke a will or trust — or, for that matter, a power of attorney or other planning document you might have signed. With that caveat, here are some thoughts on how it might be done:

Revoking a will

The usual way to revoke a will is to sign a new one. It is very uncommon for an individual to want or need to revoke a will without making new arrangements for disposition of his or her property. Somewhere in your will — probably in the first paragraph or two — there is probably language that says something like “I hereby revoke all other prior wills I have signed.” That’s all it takes.

It is also possible to revoke a will by physically destroying the original document. Actually, Arizona law says you can do this by committing a “revocatory act” on the document. That can include burning, tearing, or other physical acts of destruction on the will or on a part of it. There are two keys here: you must intend to destroy the will, and you must do it yourself (though it is permitted to instruct someone else to do it in your presence). It is not an effective approach to call up your brother on the telephone, ask him to go down to the basement where the will is located, tear it up and report back to you — it must be done in your “conscious presence.”

Another way to revoke your will is more subtle: you can misplace it. If after your death no one can find your original will, and it is apparent that it was once in your possession, the law presumes that you must have destroyed it. That is only a presumption — we might be able to overcome it by showing, for instance, that you told everyone your will was completed and in a safe place shortly before your death. Obviously, a better choice is to keep track of your original will, and tell your heirs and family where to find it.

Another way to “revoke” your will: get married, or divorced, or have children. Actually, these life changes do not really revoke your will under Arizona law, but they can effectively rewrite your will — and in some circumstances can change your entire estate plan. There is a presumption in either case that you just didn’t get around to making appropriate changes in your will. Once again, you can overcome that presumption by taking appropriate action. There is a high likelihood that the law’s presumption will not be accurate as applied in your facts, so after marriage, divorce or birth of a child you should get together with a lawyer to make sure your estate plan is in order.

Revoking a trust

When a client asks about revoking a revocable living trust, our first question is not about “how” but “why.” There are very few disadvantages to having a revocable living trust — the two primary problems are the cost of setting one up and the difficulty of transferring assets to the trust. If you have already incurred both the cost and the difficulty of funding, it probably does not make sense to revoke the trust. Instead, let us talk with you about revising the trust to remove whatever provisions trouble you. Is it just that you don’t want your former girlfriend’s name to appear in the document? OK — we can probably “restate” the trust, which will involve replacing the entire trust document with a new one without the offending name.

For whatever reason, perhaps you just want to revoke your revocable living trust. After all, “revocable” is in the name, right? How do you do it?

First, you look at the trust document. Does it tell you how to revoke it? Perhaps it requires a written revocation, and maybe even it calls for the signature of the trustee (these are common but not universal requirements). If the trust tells you how to do it, follow the trust’s instructions.

Is it enough to tear up the trust? No, not under Arizona law. How about misplacing the trust document? No, a missing trust does not create a presumption of revocation in the way that a missing will would do.

How about getting married or divorced, or having children? This one involves a little more nuance. Your trust might take care of the children part — a well-drafted trust will usually make provision for the later birth (or death) of a child, or even a grandchild. Sometimes that provision is by one of the legal shorthand terms “by right of representation,” “per stirpes” or even “per capita.”

Marriage may not be covered in the trust document or Arizona’s default law. Divorce is covered by the same default statute as we described above for wills — but with the added wrinkle that if your trust is a joint trust between you and your spouse, it is a little harder to figure out what happens in individual circumstances. The message here: if you have any of these big life changes (marriage, divorce, birth or death of a child or other beneficiary) get in to your lawyer’s office as quickly as you can to make the appropriate changes to your revocable living trust.

Powers of attorney

How do you revoke your power of attorney? If you have never shared the document with the named agent or anyone else, you can revoke it by simply tearing it up and throwing it away. If you have shared it, you should write a separate letter to everyone who has seen it indicating that you are revoking the power. Make sure any new power of attorney you sign deals with the older one(s): it may not be enough to just rely on the most recent document, since they don’t automatically revoke older powers of attorney in the same way that wills do.

Keeping track of power of attorney documents and formally revoking older ones is important for another reason. Unlike trusts and wills, revoked powers of attorney are still valid to the extent that your agent acts without knowledge of the revocation. Save everyone a lot of heartache, expense and confusion by having an attorney prepare your new powers of attorney and properly revoke older versions.

One final note: you can see that the effect of having older, revoked documents around can be serious and can vary between the different types of documents. Help us keep your estate plan straight, and your life uncluttered. We know that you paid good money for those old documents, and that it is hard to throw them away. Just do it. If we prepare your new estate plan, we will offer to help you revoke and destroy the old documents (and all those drafts and copies we lawyers sent you), and we’ll volunteer our shredder to make it discreet and effective.

How To Revoke Your Revocable Living Trust. Not.

MARCH 14, 2011 VOLUME 18 NUMBER 9
Let us be clear right up front. The California Court of Appeals ultimately agreed that Steven Wayne Stoker had successfully revoked a will favoring a former girlfriend. He also successfully revoked the trust created at the same time as that original will. In a sense, our headline is incorrect, since Stoker’s technique worked. But why in the world (other than for the good story thereby bequeathed to your children) would you ever use this technique to straighten out your estate planning? The right approach: talk to your lawyer, explain what you have already done and what you want to accomplish, and leave the revocation method in the hands of professionals.

Back to our story, which is admittedly both instructive and entertaining. Steven Wayne Stoker signed a will in 1997. In it he left some items of personal property to friends, but the residue (and bulk) of his estate was to go to the Steven Wayne Stoker Revocable Trust, which he had signed that same day. The trust named his girlfriend, Destiny Gularte, as trustee and beneficiary.

According to later testimony Mr. Stoker and Ms. Gularte had an angry argument several years later, and they separated permanently. One night about eight years after signing the will and trust, he apparently had a conversation with another friend about estate planning, and he resolved to change his will. At Mr. Stoker’s request the friend took down what Mr. Stoker dictated:

I, Steve Stoker revoke my 1997 trust as of August 28, 2005. Destiny Gularte and Judy Stoker to get nothing. Everything is to go to my kids Darin and Danene Stoker. Darin and Danene are to have power of attorney over everything I own.

Mr. Stoker signed this document, but (though two friends watched him sign it) no one signed as a witness. Mr. Stoker apparently did not notice that his friend had misspelled both Darrin’s and Danine’s names — the court record is silent as to who introduced those errors. Then he took out the original 1997 will, urinated on it, and set it on fire.

Three years later Mr. Stoker died, but without having done anything more formal to clarify his estate plan. His signature and his actions in 2005 raised a number of legal questions:

  1. Had he revoked the 1997 will?
  2. Was the 2005 will valid?
  3. If the 2005 will WAS valid, what effect did that have on the 1997 trust?

The California probate judge — who had listened to the testimony and assessed the credibility of the witnesses — found that the 2005 will expressed Mr. Stoker’s actual wishes, and that the 1997 will and trust had both been revoked. The California Court of Appeals agreed, and upheld the finding that Ms. Gularte would not receive anything from his estate.

It is important to note that state law differs, and that Arizona law would assess these actions differently — even though the outcome might ultimately be similar. Indeed, California had adopted changes in its probate laws in 2009 making it easier to show an individual’s intent even though the precise procedural rules might not have been followed. That change in law made it possible for the probate court to enforce Mr. Stoker’s apparent intent despite his not having secured two witnesses’ signatures, not having formally revoked his revocable living trust, and having taken an unusual approach to the revocation of his prior will. Estate of Stoker, March 3, 2011.

Would the same result be reached in Arizona? Perhaps, but for different reasons. Ideas to explore in an Arizona probate proceeding might include:

  • Arizona permits “holographic” wills without witnesses, but requires the important parts to be in the testator’s own handwriting. Mr. Stoker’s will probably would not have complied with this requirement, since the handwriting was almost all his friend’s — even though he might have dictated the words.
  • Arizona does have at least one court case allowing witnesses to sign later — even after the death of the person executing the will. Here there were apparently two actual witnesses, though they had not signed the document at the time. Could they sign attesting that they had witnessed the will even after Mr. Stoker’s death? Perhaps.
  • On one point there is no question. Arizona permits revocation of an old will by any “revocatory act.” There is little doubt that urinating on and then burning the will would meet that requirement. (The appellate court, noting the practical difficulty of using this technique, observed that “we hesitate to speculate how he accomplished the second act after the first.”)
  • While there is little doubt in Arizona that the successful revocation of his 1997 will would prevent transfer of additional assets to his revocable living trust after his death, it is less clear what would happen to assets he might have already transferred into the trust’s name. The California court opinion is unclear about whether there even were any such assets; if there were, Arizona law might lead to a different result. But even that is uncertain, since Arizona adopted a change in trust law as part of  the Arizona Trust Code effective in 2009. Under the new provision, the court can usually treat any document as a trust amendment if it “manifest[s] clear and convincing evidence of the settlor’s intent.”

Mr. Stoker did leave his children a pretty good story, regardless of how much property and money they might have received. But our recommendation remains: if you want to make changes to your estate plan, the relatively small cost of getting professional assistance will pay off in the long run. We do endorse Mr. Stoker’s revocatory act: it left a convincing impression of his intent and wishes.

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