Can I amend my trust?

If you spent all that time and money creating the perfect trust for you and your family, but now it's time to make some changes, what are the next steps? If you're doing an estate plan that has a trust involved, you're probably doing some more advanced planning, rather than a simple will that you tried to draft yourself from some website. Your trust is probably tailored to your situation, tailored to your family, to make sure it's achieving the goals that you set out. If you have a child with special needs, your trust is probably set up to make sure that they keep their government benefits. But what do you do when after all that planning after all that time goes into it? You need to make a change.

There are two main ways that you can make a change to your trust:

  • A trust Amendment.
  • A Restatement of the trust.

What is a Trust Amendment?

A trust amendment is a separate legal document. Depending upon the number of changes you make, it can be a short or a little bit longer document. But really all it's doing is making a change to a certain part of your trust. So as opposed to changing the whole trust, we're going to use it solely for small changes. For example, if we're going to change a successor trustee, or let's say somebody got married and we want to update their name from their married name to their divorced name, or whatever changes in the name or if we're adding, you're specifically deleting a specific request. Let's say you had a specific bequest of your '56 Chevy Corvette, but now you sold the Corvette and you don't have that car anymore. We want to go back and make that change to your trust. With these kinds of small changes, we can just do a trust amendment, which is a shorter process. It's a short document, but it's signed in the same way you signed your trust. You don't need to do this all the time. Usually, you can do it when you have a few changes to make. But these can add up I've seen trusts with a fifth, sixth, seventh, and eighth amendment.

What is a Trust Restatement?

After a while, you may want to consider the second option, which is a restatement of your trust. So we're going to use the restatement if we have major changes. So for example, if you've gotten divorced and your trust was for you and your wife, we may want to make a whole new trust because we don't want your former spouse to be the trustee and to be receiving the benefits of your trust. A restatement is longer than an amendment. It's not just a simple one or two pages. It's actually taking the entire trust, making your changes, and then calling it a restatement. So it's an entirely new version of your trust.

One of the reasons why it's important to work with professionals is when you do this restatement, you may have to retitle assets and you may need to sign other supplemental documents to reflect that there's a new trust. If you work with some website and you just have a trust that you've downloaded, and now it's time to make changes, and you check that box that says restatement what happens next? What if that website doesn't tell you about all the other things you need to do after you restate your trust? So that's why when you're looking at amending your trust, if you spent all that time and energy creating the perfect trust, or especially if you have a special needs trust that's designed to protect those government benefits for a family member, you want to work with professionals, work with your financial advisor, your accountant, your attorney, in the case of a special needs trust work with the care managers. You want to make sure that you are doing the right version of making changes to your trust. You don't want to do the wrong version. You don't want to mess it up. And you don't want to endanger the benefits of your child if there's a special needs trust. You don't want to give things to the wrong people if it's a regular trust. If it's an irrevocable trust that's meant to plan for later in life, you don't want to mess it up so it becomes revocable at that time.

If you're not sure what to do to take those next steps, let's schedule a Legal Strategy Session. We can have a 15 or 20-minute call and go over your current situation with your trust and give you some options for those next steps. Whether it's an amendment or whether it's a restatement, you want to make sure you get it right so that you keep your trust plan intact with the correct results you're aiming for.

Andrew Ayers
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I work with business and estate planning clients to craft legal solutions to protect their legacies.