Free Living Trust Revocation

The Living Trust Revocation is a document used to revoke a living trust or joint living trust. The Revocation can be used to either dismantle the entire plan of using a revocable living trust or to revoke the "old" living trust in preparation for preparing and signing a "new" living trust. However, if a new living trust will be created, and if it will have the same number of grantors as the revoked living trust, consider amending and restating the existing living trust instead of revoking it. If the living trust is merely restated and not revoked/replaced, the assets already transferred to the living trust will remain in the living trust, avoiding the need to transfer each of them. (See this program's Living Trust or Joint Living Trust documents and select the option to "Amend" the Trust.)

The Living Trust Revocation must be signed by the grantor(s). For a single living trust, the grantor of the trust must sign. For a joint living trust, one or both grantors must sign, depending upon whether both grantors agree to revoke the joint living trust. If only one grantor signs the Revocation for a joint living trust, the trust continues, but it will only pertain to the property contributed by the non-signing grantor. In that event, it is recommended that the non-signing grantor create a new single living trust, transfer the property from the "old" joint living trust to the new single living trust, and then revoke the "old" joint living trust. Otherwise, the language in that "old" joint living trust is likely to cause confusion because only one grantor has revoked the trust.

Before signing the Revocation, each grantor should also review his or her pour-over Will. The pour-over Will is designed to transfer the grantor's assets upon death into the living trust which is about to be revoked. IT IS HIGHLY RECOMMENDED THAT THE REVOCATION NOT BE SIGNED UNLESS A NEW WILL IS ALSO PROPERLY SIGNED BY THE GRANTOR. The new will can be a pour-over will if the grantor is signing a new living trust to replace the living trust being revoked. If so, the new pour-over will should identify the new living trust. If, however, the old living trust is being revoked and no new living trust will replace it, a traditional will (not a pour-over will) should be prepared and signed which will distribute the Will writer's property directly to his or her beneficiaries.

1. Before the Revocation is signed, the trustee must distribute the trust assets (if any) to the grantor(s).
   • For a single living trust, the assets are re-transferred to the grantor.

   • For a joint living trust revoked by both grantors, the assets are re-transferred to the grantors in the same manner and amount (adjusted for additions and depletions) as the assets were contributed to the living trust.

   • For a joint living trust revoked by only one grantor, the assets contributed by that revoking-grantor (adjusted for additions and depletions) are re-transferred to that grantor. The remaining assets (contributed by the non-revoking grantor) are retained in the living trust for the non-revoking grantor.

2. For a review of methods used to transfer specific types of assets, see "Living Trust - Funding Worksheet" offered by this program.

3. Before signing the Revocation, each grantor should also review his or her pour-over Will. The pour-over Will is designed to transfer the grantor's assets upon death into the living trust which is about to be revoked. IT IS HIGHLY RECOMMENDED THAT THE REVOCATION NOT BE SIGNED UNLESS A NEW WILL IS ALSO PROPERLY SIGNED BY THE GRANTOR.

4. The Living Trust Revocation must be signed by the grantor(s).
   • For a single living trust, the grantor of the living trust must sign.

   • For a joint living trust, one or both grantors must sign, depending upon whether both grantors agree to revoke the joint living trust. If only one grantor signs the Revocation for a joint living trust, the trust continues, but it will only pertain to the property contributed by the non-revoking grantor. In that event, it is recommended that the non-revoking grantor create a new single living trust, transfer the property from the "old" joint living trust to the new single living trust, and then revoke the "old" joint living trust. Otherwise, the language in that "old" joint living trust is likely to cause confusion because only one grantor has revoked the joint living trust.

5. For states other than Florida, it is recommended (and may be required if real property is included among the trust assets) that the signature(s) be notarized; however, unlike a will, no witnesses are necessary. In Florida, the Revocation must be signed with the same formalities required for the signing of a will (see provisions 7 - 12 below).

6. The original of the Revocation should be attached to the living trust to which it relates. A photocopy should be given to the trustee(s) and to any person or institution who has received a copy of the living trust.

   FLORIDA ONLY (7 - 12):
   

7. This Revocation is not valid unless it is signed by the Grantor(s) who are of "sound mind." Being of "sound mind" requires that the Grantor(s): (a) know that he or she is signing a Living Trust Revocation; (b) know the general nature and extent of his or her property; and (c) know the descendants or other relatives that would ordinarily be expected to share in the estate.

8. If the Grantor(s) are unable to sign due to physical disability, another person may be able to sign on behalf of the Grantor(s), in the Grantor(s)' presence, and at the express direction of the Grantor(s). If there are any questions regarding the possibility of someone signing on behalf of the Grantor(s), a lawyer should be contacted.

9. The Revocation should be signed by the Grantor(s) in the presence of two DISINTERESTED adult witnesses and a notary public.

10. Both of the witnesses must watch the Grantor(s) sign the Revocation. The Grantor(s) should verbally declare that the document is intended to revoke the living trust, but the witnesses need not read the Revocation.

11. Each witness must sign his or her name with the Grantor(s) and the other witness present. The witnesses should be satisfied that the Grantor(s) willingly signed the document as the Grantor(s)' free and voluntary act, and that the Grantor(s) were of full age and sound mind.

12. The Florida Self-Proving Clause is a document which should be attached to the end of the Revocation, and which contains the Grantor(s)' acknowledgment and the affidavit of the witnesses, made before a person authorized to take acknowledgments and administer oaths. The affidavit recites that the requisite formalities were observed in signing the Revocation. Although attaching the affidavit has nothing to do with the legality of the Revocation itself, it may prove useful if the validity of the Revocation is ever challenged, because it eliminates the need to have the witnesses testify that the formalities in signing the Revocation were followed. The witnesses may not be available later when they are needed.