Q: Can a debt amendment to a revocable trust be enforced if the trust is amended later ignoring the debt amendment?
My mother issued an attached amendment to her trust for a debt she owes me to be paid after her death from the house owned by her trust. She has since signed the same trust with a different date than the original trust (amendment is to original dated trust) and she has amended her trust again without the debt amendment to me. What happens the the debt amendment? Can I enforce it? Debt amendment was signed and notarized with her attorney.
The original trust was dated in April, notarized and witnessed and recorded and the debt amendment applied to the April trust. She signed an identical copy of that trust in June without notary or recording. Her newly restated and amended trust referred to the June trust as if the original trust of April with attached debt amendment never existed.
A:
In California, the enforceability of a debt amendment to a revocable trust that is later amended without including the debt amendment can be a complex legal issue. Here are some points to consider:
1. Revocability: If the trust is revocable, the grantor (your mother) generally has the right to amend or revoke the trust at any time, including removing or changing provisions related to debts.
2. Validity of the debt amendment: If the debt amendment was properly executed, signed, and notarized, it may be considered a valid amendment to the original trust. However, the enforceability of the amendment may depend on the specific language used in the original trust and subsequent amendments.
3. Conflicting amendments: When there are multiple amendments to a trust, the most recent amendment typically takes precedence over earlier amendments. If the latest amended trust does not include the debt amendment, it may be argued that the debt amendment has been effectively revoked.
4. Evidence of the debt: If you have other evidence of the debt owed to you by your mother, such as a promissory note or other written agreement, you may be able to pursue the debt through other legal means, separate from the trust.
5. Legal representation: Given the complexity of the situation, it is highly recommended that you consult with an experienced estate planning attorney in California. They can review the specific language of the trust documents, amendments, and any other relevant evidence to provide guidance on your legal options and the best course of action.
Ultimately, the enforceability of the debt amendment may depend on various factors, including the specific language of the trust documents, the timing of the amendments, and the laws of California. An attorney can help you navigate this complex situation and protect your rights as a creditor.
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