If you’ve already created a trust as part of your estate plan, you’re on the right track to safeguarding your assets and ensuring a smooth transfer of wealth to your loved ones. However, life is dynamic, and circumstances can change. You might find yourself in a situation where you need to amend your trust. Whether it’s a change in beneficiaries, assets, or other provisions, this article will guide you through the process of making amendments to your trust.
Review Your Trust Document:
Your trust document is your guiding document for making amendments. It should contain provisions that specify whether you are allowed to amend the trust and how to do so. This information is crucial for successfully making changes.
Determine if Your Trust is Revocable or Amendable:
Firstly, it’s essential to understand the type of trust you have. If you have a revocable or amendable trust, it means you reserved the right to make changes to it when you created the trust. This flexibility can be incredibly valuable as it allows you to adapt your estate plan to changing in circumstances and life in general.
The trust will contain a provision that states something along the lines of “The Grantor/Settlor reserves the right to amend this trust during his/her lifetime.”
Capacity to Amend the Trust:
If the person has no capacity, their signature on the amendment will be invalid and therefore they won’t be able to amend it. Capacity means you must be of sound mind and legally allowed to sign.
Often times, the right to amend can be given to a power of attorney to sign if you are incapacitated. Having this ‘back up’ plan may be right for you or not, but speaking to a licensed attorney to help you is important.
Follow the Instructions Carefully:
Once you’ve located the provision allowing amendments in your trust document, the next step is to find instructions on how to make these amendments. Trust documents can be highly specific in their requirements, so it’s vital to follow these instructions precisely.
For example, the trust may require that you mail the amendment, or print it on blue paper. Who knows! The point is, ready the instructions carefully and make sure you do it precisely. Otherwise, you risk your amendment not being valid.
Consult an Attorney:
Amending a trust can be a complex process, and the devil is often in the details. This is why it’s highly recommended that you consult with an attorney experienced in estate planning, when making amendments to your trust. While some may attempt a “do it yourself” approach, it’s important to recognize that even minor mistakes can render your amendments invalid, as demonstrated by a recent California case, in which the individual failed to mail the amendment by certified mail to himself (as required by the trust) and as a result, the court deemed the amendment invalid.
In conclusion, amending your trust is an important aspect of estate planning that allows you to adapt to changing circumstances. However, it’s a process that requires careful consideration and adherence to your trust document’s specific instructions. Due to the potential complexities associated with making amendments, it’s advisable to seek legal counsel from an experienced attorney.
