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ESTATE PLANNING column: Trust changes need look from attorney

ESTATE PLANNING column: Trust changes need look from attorney
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Q: How do I make changes to my trust? Is this something that I can do myself or do I need to go back to the attorney?

A: Do you have to go back to the attorney: no. Should you go back to the attorney: yes.

I know some of you are thinking, "of course this guy wants you to go back to the lawyer, he is one." You might have a point there, but I'm still right.

The most common trust drafted for estate-planning purposes is the Revocable Living Trust. Your trust might have a title like Living Trust, or Revocable Trust or possibly Inter-Vivos Trust or some combination of all of them. Just remember, if it is a trust you created for yourself and it isn't designed for specifically for tax planning, it is very likely that it can be changed.

Usually, within the body of the trust document there is a provision withholding the right to amend or revoke the trust in whole or in part.

This allows you, the "grantor," the right to change the trust whenever the mood hits you. If you want to take Bobby out and put Suzie in, you likely can do it. If you want to name a different trustee, that's your right.

As you know, a trust is a legal document. If you have ever taken the time to read it, you will likely find Latin phrases and lots of "heretofores." You might understand it or you might not. The thing to remember is all of those words mean something.

Since all of these words mean something, you need to be careful when you start changing them. You might only want to take Bobby out of the trust, but by removing him, you might cause a specific bequest to fail or possibly and unanticipated tax event. All of the parts of a trust support the other parts. That's why they are so long and complicated. By messing with one section, you might inadvertently mess with another.

Also, you might not make the change correctly. Trusts essentially are creatures of the Legislature. Trusts exist because our government says they can. Sure, courts have interpreted them and some would argue have made law that affects them. The thing to remember is that there are certain legal formalities that must be followed for a Trust to exist.

If you fail to make the changes correctly, they might not be effective.

Or worse, the changes might be ambiguous and you have left your loved ones a situation where a Court needs to decide what you intended.

Most estate planning isn't brain surgery, but it isn't exactly mowing the lawn either. Attorneys know stuff. That's why you hired one in the first place. Remember one of my Pearls of Estate Planning

Wisdom: paying a lawyer is right up there with getting a sharp stick in the eye, but it usually beats the alternative.

I'm on vacation this week, so nobody call.

Christopher W. Yugo is a member of the Indiana Bar and a Vice President and Senior Trust Officer for First National Bank's Trust Department. Address questions to Yugo in care of The Times, 601 W. 45th Ave., Munster, IN 46321.

Copyright 2012 nwitimes.com. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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