Does Your Trust Update Require an Amendment or Restatement?
If you have a revocable living trust, you may need to update it from time to time. In the process of your trust update, you may wonder if you need to amend it or if it needs to be completely restated. The answer to that question depends on what your goal is with the update.
Why a Trust Update Is Needed
A living trust can be changed at any time and for any reason. That’s the benefit of creating a revocable trust. There are several reasons you might need to amend or restate your trust, and they are usually centered around life events. These might include:
- Death
- Birth
- Marriage
- Divorce
- Retirement
- Changing beneficiaries
- Adding or removing assets
- Relocating to a new state
In addition, it’s smart practice to review your trust regularly to ensure that it continues to support your wishes. What you desire at 60 can be very different from what the 40-year-old version of you would have wanted.
When an Amendment Is the Best Bet
If your trust update only requires minor changes, an amendment is the correct choice. These minor adjustments can include changing assets or trustees. A trust amendment changes one or more provisions of a revocable trust without revoking it entirely.
Implementing numerous amendments over the years can make the trust confusing, requiring your trustee to go through additional documents to makes sense of multiple amendments. If it comes to that, it might be time to rework your trust to be clearer. That’s when a restatement is in order.
When a Trust Update Requires a Restatement
If you have multiple changes to make to your trust, a restatement could be the better option. Updates that fall into this category include removing a beneficiary or changing your asset distribution. Restating the trust means that you and your estate planning attorney will create a new document that states that the trust has not been revoked but is being restated (replaced by a new trust with the same name). Because your trust update is a restatement, you won’t have to move property out of it and then back into it (which you would have to do if you revoked the original trust).
In many instances, a restatement is preferable to an amendment because the restated trust supersedes any previous trusts and amendments. If, for instance, you removed a beneficiary, they would never know because they would not be listed in the amended trust, which will avoid any potential issues or hurt feelings.
Another reason to restate the trust is to take advantage of changes to the law. For example, the popular “AB” trust format of the 1990’s was made almost completely obsolete by 2012 estate tax law changes, therefore almost all “AB” trusts should be restated.
Speak with your estate planning attorney if you have an older trust and need to make these adjustments.
