A person may want to amend their trust for many reasons, such as when they want to add or remove the beneficiaries, alter the contents of the trust, or change the trustees. If you wish to modify your trust for these reasons or any others, you can do so by drafting amendments.
Amendments are made in the form of a writing known as an “amendment to the trust.” This document should explain any changes and identify the new additions or deletions being made. Then it must be dated and signed by you (i.e., the settlor).
It is important to note that you should never make changes to this document by simply removing a page, re-typing one to include new information, and then replacing it. This sort of action can invite legal disputes from a grumpy non-beneficiary or may require a court to step in to interpret the trust terms.
Instead, the following provides a list of steps that you will be required to take in order to amend your trust:
- Locate your original living trust documents and find the provisions in them that you wish to amend or change;
- Draft or complete a trust amendment form;
- Ask the trustee and any other relevant parties named in the trust to accompany you to a notary public;
- Sign and date the amendment document, then ask the notary to notarize your signature while the trustee and other parties bear witness; and
- Finally, attach the original amendment that you just created to the original trust papers.
Additionally, it should also be noted that if you are making a lot of changes to the trust, then it is generally recommended that you change the entire trust document by creating a new trust, rather than using an amendment form.
Do I Have to Draft an Amendment to Add Property to My Trust?
If an individual simply wishes to add property to their trust, then they will not need to draft an amendment. A trust that has been set-up properly should already contain language that gives the settlor a right to include property that is acquired after the trust is created.
In this instance, the person will only have to make sure that the new property is titled as being owned by the trust and they will have to add it to the schedule of assets in the trust.
On the other hand, the person will have to go through the process of amending the trust if the acquired property is going to a different beneficiary than the one already named in the trust. A trust will also have to be amended if the trust has more than one beneficiary listed.
There are some cases where amending a trust might cause more confusion, such as if a person is including a large quantity of property or if they are making significant changes to the trust. These types of scenarios can make amending a trust much harder and costly. As such, a solution to this would be to restate the trust document by creating an entirely new trust document.
Restating a trust document allows the person to keep the original date of the initial trust and does not require making any new changes to the property that is already in the existing trust. Instead, it simply adds to it.
What If You Want to Make Major Changes to a Trust?
If a person wants to make major changes to an existing trust, then they can either revoke the current trust or they can restate the terms of the trust in its entirety, along with the necessary changes added to this restated version.
In cases where a trust is revoked and replaced with a new one, there can sometimes be issues with the transferring process. For example, if this process is not done carefully, then there is a risk that not all of the property or assets will transfer from the old trust to the new one.
Restating (as opposed to revoking) the trust can prevent this from happening since all of the property or assets will remain in the trust while the new changes are being added.
As discussed, there are many reasons as to why a person may want to amend or change their trust. The following list provides some of the most common reasons:
- They get married and now wish to include their spouse;
- They have children and want to add their children;
- If a spouse who is a beneficiary dies;
- If another major beneficiary dies;
- They may have inherited or received other valuable property that they now want to include as part of the trust;
- If they move to a state that has different laws on how marital property is distributed and kept; and/or
- They change their mind about who they want as beneficiaries.
The above list describes only the most common scenarios, however, it does not offer all the reasons why a person may want to change or amend their trust. Regardless of the reason though, any amendments will have to be done properly and in accordance with trust laws.
Additionally, it is also important to keep in mind that not all types of trusts can be amended. Therefore, if a person wants to make changes to a trust, then it may be in their best interest to consult an attorney for advice.
Do I Need to Hire an Attorney for Help with Amending My Trust?
The process of setting up and drafting the documents to form a trust can sometimes be a challenge. The same can be said when it comes to amending a trust because any changes need to be recorded just as carefully and the applicable laws will need to be reviewed for compliance.
Thus, if you need to amend an existing trust or have any questions about trusts in general, then you should consider contacting a local estate planning lawyer for further assistance. A lawyer who has experience in these matters will be able to execute the appropriate trust documents and can ensure that any amendments you wish to make are done correctly.
Following the proper requirements of setting-up and/or amending a trust is important to not only make sure that its contents are distributed in accordance with your desires, but also to reduce the risk of legal problems from arising in the future.