Issue 10.13
Trusts are generally easier to change than wills. Trusts have fewer requirements than wills when a change needs to be made. A person can change their trust by using an “Amendment.” An amendment usually must be in writing, signed, dated, and notarized. A change to a will should have two witnesses in addition to those other requirements to make it effective. On occasion, a trust might require additional requirements, but these are the most common. A trust amendment sets out all of the changes you are making to your trust. You specify the new additions or deletions to your trust.
A person may be tempted to skip making a properly prepared amendment and instead pull out a page from their trust or write in or type in new language onto a page of their existing trust. You should never do that. Even if you initial written changes in the trust, there are laws that can make those markings on your trust document irrelevant, even as though they did not exist. Also, making changes in this manner gives an opportunity for legal challenges from disgruntled beneficiaries, or the changes might require a court’s involvement to determine what the effect of the changes is.
You should be able to add property to your trust without making any change to your trust document. No amendment is necessary when you add or remove property from your trust. Properly drafted trusts contain language allowing you to move property in and out of the trust during your lifetime. However, if you add property to the trust with a specific purpose in mind or with desire that it go to a specific beneficiary, an amendment will be necessary to carry out that intent.
When you want to make major changes to your trust, you generally should “restate” the trust, which provides new instructions for the same trust. Approaching major changes in this way avoids problems. If you were to revoke an existing trust and sign an entirely new trust, you would need to transfer all the assets that were held in the first trust to the new trust. New deeds, beneficiary forms, bank account documents, and other asset documents would need to be completed and processed. You can avoid this problem by restating the trust. This allows you to get a “new” trust but you don’t have to transfer your assets from the old trust to the new one. The new trust provisions automatically control the assets that were part of the trust. A “restatement” of a trust should be dated, signed, notarized, and should clearly state that it replaces the original trust language.
Amendments to or restatements of your trust agreement should always be prepared with the advice and writing of an experienced estate planning attorney. My experience in preparing amendments and my knowledge of what language to include or exclude to avoid contests will be invaluable to you and your family when the time comes to enforce the directions you have given in your trust.
Sean Sullivan is a shareholder with the firm of Brindley Sullivan, PC, 382 South Bluff, Ste. 150, St. George, UT 84770, (435) 673-9220.