If I am now divorced, how do I/we terminate our revocable living trust?

Asked on July 2, 2012 under Estate Planning, California

Answers:

Cameron Norris, Esq. / Law Office of Gary W. Norris

Answered 8 years ago | Contributor

First of all, by default in CA trusts are revocable which includes the power to terminate.  Terminating a trust ends it.  Game over for the trust.  So, revoke the trust (sign and notarize document terminating/revoking the trust) and transfer any trust assets back to the settlors (husband and wife) to later distribute the trust property in the dissolution proceeding.

Second, there is a CA Probate Code provision that may be at play here.  Many trusts operate via a will (the so-called pour-over trust).  Such trusts don't have many assets, but a will devises all property to the trust held in both spouses names.  CA Probate Code 6122 states that upon dissolution:

"unless the will expressly provides otherwise, if after executing a will the testator's marriage is dissolved or anulled, the dissolution or annullment revokes the following...any disposition or appointment made to the former spouse."  So, as soon as that final divorce judgment was entered, your spouse was struck from your will and any appointment under the will.

I would recommend writing a trust termination and writing a new will.


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