Created CA Living Trust, Then Moved to OK

[DBinSJ]

Jurisdiction

California

An elderly former neighbor of ours whose first language is not English recently had a revocable living trust made up in California, by a California attorney, when she resided in California and expected to continue long-term. She has two specific questions that she is asking me to obtain answers for her about:

(1) The attorney who created the trust documents for her served as both the notary and one of the two witnesses (the attorney has no other role, such as executor or beneficiary). Is the trust valid if the attorney served in these three capacities (creator, notary and witness)?

(2) Our neighbor subsequently made an unexpected move to the state of Oklahoma, where she expects to reside for the remainder of her life. A financial planner there is telling her that she needs to have the trust re-done by an Oklahoma attorney because of the differences in law between California and Oklahoma. (The neighbor is widowed, with no children or living relatives, either in the US or elsewhere, if that makes a difference.) The second question is: Is it really necessary to do a new trust? She reportedly paid $2,100 for the one that was done in California and she is not affluent, so she is understandably reluctant to have a new trust done if it is not really necessary.

 

[adjusterjack]

(1) The attorney who created the trust documents for her served as both the notary and one of the two witnesses (the attorney has no other role, such as executor or beneficiary). Is the trust valid if the attorney served in these three capacities (creator, notary and witness)?

I think it's valid. There is no statutory requirement for witnesses or notarization of a trust, though it's good practice.

The only problem I can see is if the attorney notarized his own signature (illegal) but that shouldn't affect the terms of the trust if he also notarized the trustor and the witness.

A financial planner there is telling her that she needs to have the trust re-done by an Oklahoma attorney because of the differences in law between California and Oklahoma.

One would have to compare the trust codes of both states which would probably be an ungainly project. It would be prudent for the trust to be rewritten to conform to Oklahoma laws.

The neighbor is widowed, with no children or living relatives, either in the US or elsewhere, if that makes a difference

Then who is the beneficiary of the trust, who is the trustee upon her death, and what assets are in the trust?

she is not affluent

Then I would question whether she even needs a trust.

Again. Who is the beneficiary, who is the trustee upon her death, and what assets are in the trust?

 

[zddoodah]

(1) The attorney who created the trust documents for her served as both the notary and one of the two witnesses (the attorney has no other role, such as executor or beneficiary). Is the trust valid if the attorney served in these three capacities (creator, notary and witness)?

It is a common misconception that trusts require witnesses and notarization. In fact, neither is required. Of course, most trusts are witnessed and notarized because witnesses and notarization provide evidence that the trustor/settlor did, in fact, sign the document. But they're not required.

A financial planner there is telling her that she needs to have the trust re-done by an Oklahoma attorney because of the differences in law between California and Oklahoma.

What differences in the law? Note that I don't expect you to know the answer, but it's an important question.

Is it really necessary to do a new trust?

Unlikely, but I'd want to know whether the financial planner has specific laws in mind or is just mindlessly saying that it needs to be done solely because of the move.