Trust Amendments vs Restatements by Carlsbad Wills and Trusts Attorneys – Heieck Law Center
“Change is certain.” – E.H. Carr
Life is always changing and your trust needs to mirror those changing circumstances.
Let’s say you have a Revocable Living (inter vivos) Trust, but you want to make some changes to it. Perhaps you want to change the beneficiaries or the successor trustees. Maybe the changes are more substantive because you’ve divorced or remarried since you initially created your trust or you’ve made several amendments already and all the amendments are becoming confusing. So, what do you do? Of course you should consult with your estate planning attorney. However, this primer can help you understand options for changing your Revocable Living Trust when the time arises.
Differences Between a Trust Amendment and an Amendment and Restatement of Trust
A Trust Amendment is a legal document that changes specific provisions of a Revocable Living Trust but leaves all of the other provisions unchanged, while an Amendment and Restatement of Trust completely replaces and supercedes all of the provisions of the original Revocable Living Trust.
Do I Choose a Trust Amendment or Restatement?
If your changes are minimal, such as updating a legal name in the trust or changing the name of a beneficiary, then a simple Amendment to the Trust is usually the simplest, best and most cost effective option. But if the changes are significant, then sometimes the best way to go is to rewrite the entire trust through a Restatement. A Restatement is actually also a type of Amendment, but the Restatement amends the Trust by replacing the entire Trust document with the new restated terms set forth in the Restatement of Trust.
Some of our clients are reluctant to create a Restatement for a Trust that is already funded as they are concerned that the Restatement will change the name and the date of the Trust, causing the Trustor to have to re-fund everything in the restated trust’s name. But this is simply not the case. By doing a Trust Amendment or an Amendment and Restatement, the original name and date of your Revocable Living Trust will remain the same and the hard work you put into funding your Revocable Living Trust under the original trust name and date won’t need to be undone.
If it’s time for a change to your Revocable Living Trust, please make sure you consult an experienced estate planning lawyer as hand-writing changes on the trust on your own or trying a do-it-yourself amendment could potentially void the original trust entirely.