Amending a Trust

Trusts are generally easier to amend than wills, requiring fewer formalities, though you should get the change notarized if it involves real estate. You modify a trust through a procedure called amendment. You should amend your trust when you want to change or add beneficiaries, change disposition of assets in the trust, or change trustees. You amend a trust by a writing, called an amendment to the trust, explaining the changes, specifying the new additions or deletions, signed by you and dated. You should not detach a page from the trust document, retype it to include the new information, and put it back in, because this could invite a legal challenge from a disgruntled nonbeneficiary or require a court’s construction of the trust.

You don’t have to write a formal amendment to the trust to add property to it, because a properly drafted trust will contain language giving you the right to add property to the trust. You simply make sure the new property is titled as being owned by the trust. You do have to amend the trust if the newly acquired property is going to a different beneficiary than the one already named in the trust.

It is awkward to revoke, not amend, your trust when making major changes, because then you must transfer all assets out of the name of the trust back into your name, and then retransfer them to the new trust. It’s better to restate the trust in its entirety, with all changes in restated version. Occasionally, when a new trust has replaced an old one, someone will slip up and fail to transfer all the assets in the first trust to the new one. Restating a trust makes sure that all the assets remain in the trust and new ones are added. If you do revoke a trust, you do so by a writing signed and dated by you, unless some other method is specified in the trust instrument or state law. When you create a new trust to replace the revoked one, state at the beginning that it supersedes the trust dated________signed by you.

Review Regularly

You should go over your will or trust with your lawyer or other professional advisors every three to five years.

If you have a will that pours over to the trust, add a clause in the pour-over provision that says “including all amendments made by me from time to time.” Then, it will be unnecessary to make a new will or codicil each time you amend the trust.

Special Considerations for Living Trusts

If you have a living trust, remember that if you acquire property in your own name and die before you can put it into your living trust, the property will automatically become part of your probate estate, and will have to go through probate. If your will is properly drafted, such property will be picked up by your will and poured over into your trust. That’s why it’s essential to have a will even if you have a living trust.

Update, Update, Update

Other estate planning documents you might want to keep up-to-date include IRAs, insurance policies, income savings plans such as 401(k) plans, government savings bonds (if payable to another person), and retirement plans. You should keep a record of these documents with your will, and update them as needed when you update your will.