Q: If you have a lot of changes to a trust, what is the best way to amend it? I assume that I shouldn’t write the changes on the trust document and initial. If there are a lot of changes, should I just have a new trust written?
A: First check the trust because not all trusts are amendable. Fortunately, the most common trusts that estate planning attorneys draft are living trusts which are usually revocable and amendable. Unless you have something really exotic, chances are pretty good that you can make changes.
You are correct that you shouldn’t simply make the changes to the trust agreement and initial them. If you intend to make changes to your trust, do it the right way by using an amendment to trust.
Amendments are usually pretty simple documents. They acknowledge the ability to amend the trust, make the changes and then provide that the remaining portion of the trust that wasn’t changed remains in full force and effect.
If you have a lot of changes or if you’ve already amended the trust several times, it can be a little difficult for the trustee to follow. I know that when I was working for banks, I hated when I had a trust with five different amendments. It could become very confusing at times.
In those cases, creating a new trust can sound like a good idea. However, there is a way to amend the existing trust while essentially creating a brand new trust. In those situations, your next amendment could be in the form of an amendment and complete restatement.
A complete restatement is essentially a new trust but you get to treat it like it’s a complete amendment of the existing trust. Now, why would you want to use a restatement as opposed to just executing a new trust? Well, one reason is that you don’t have to re-title the trust assets.
If your trust is funded, your assets are likely titled “Jane Doe as trustee for the Jane Doe Trust dated January 1, 2010.” If you create a new trust, you will have to re-title the assets into the name of the new trust; something like “Jane Doe as Trustee for the New Jane Doe Trust dated March 1, 2018.”
If you use a complete restatement, you can leave the assets titled as they are, because the restatement is an amendment and it refers back to the original trusts name and date. In other words, you don’t have to do anything except sign the new trust. Easy Peasy.
If you have changes in mind, you should talk to your attorney to determine which is the best way to make them. A simple amendment may be all that you need.