Legal Question Re: Trusts & Wills... specifically the "Memorandum of Trust" ?
So a family member brought a Revocable Trust to me to ask a question because I have one so they must have assumed I know all about them. I don't. He was asking about something in the trust's Schedule A (property held) section, but I noticed something else that really confused me and I figure maybe some of the legal-types here could tell me what I saw. I didn't want to worry him so I didn't say anything... but if it is a problem I can let him know.
So like any revocable trust there was a "Declaration of Trust" (the actual meat-and-potatoes document). It was pretty straightforward and had a signed & notarized date of something like June 23, 2013. There was also a an amendment attached to the Declaration of Trust changing some beneficiaries and whatever that was notarized and signed about a couple years later, like December 15 2015. It was a pretty typical amendment.
Here's where it got weird...
The "Memorandum of Trust" (sometimes called "Affidavit of Trust" ) specifically called out the existence of the "XYZ Revocable Living Trust by Declaration of Trust dated June 23, 2013" and then went through all the normal memorandum things... address, grantor, trustees, specific powers, etcetera. Except when I got to the Notary and signatures at the end of The Memorandum, the notary seal and other signatures were all dated December, 15 2015. In other words, the Memorandum of Trust post-dates the actual Declaration of Trust document by 2+ years and has the same date as the Amendment.
After looking through it and asking a question or two, I figured out that at some time between the original creation of the trust (June 23, 2013) and the time of the amendment (December 15 2015) he had moved to a new address. So he took it upon himself to get rid of the Original Memorandum, rewrite it with the new address, and when he got the Declaration of Trust Amendment signed and notarized on December, 15 2015... he simply had the notary sign and date the new modified Memorandum of trust at the same time, too.
Can you do this? I know you can't simply "change" the Declaration of trusts like this - by deleting old info, writing new info, and signing a whole new document. You have to use amendments to strike out and replace prior sections. But what about the "Memorandum of Trust"? I've never seen an amended Memorandum, now that I think about it. It is still referring to the original trust document by exact name and original date... it's just got that address change and obviously has the newly notarized/signed dates at the end.
It's odd to me, and if it's a non-issue I won't worry him. But if it's somehow invalid I should tell him to have an estate attorney fix it.