Doing your estate planning once is not enough for most people, and your trust needs to be updated from time to time. There are generally three ways to update it. We choose which way is appropriate for you depending on circumstances of your life and your estate plan.
“An Amendment” is when we take your existing trust and draft a short additional document, calling it “Amendment NO.____.” We refer to the powers you have to amend, or change, your trust. Then we specify WHAT is being changed, and HOW.
For example, an Amendment may say “I hereby take Paragraph 3.7 of my trust named TRUST dated DATE and replace it with the following new Paragraph 3.7. In all other aspects my TRUST remains valid.”
So in essence, what an amendment does it replaces the specified-in-amendment parts of the old trust, keeping all other parts of the old trust in effect. This type of “amendment” is generally reserved for a few minor, maybe frequent, changes. It is most frequently done by the trust’s original drafting attorney, as they are already familiar with the trust and thus are comfortable making minor changes.
No extra asset re-titling steps are needed after execution of an amendment.
“A Restatement” is also an amendment, but of the whole trust instrument, not just of the handpicked parts of the trust, like in the “Amendment” described above.
So a Restatement would say “I hereby take my entire trust named TRUST dated DATE and replace it with this whole new trust named TRUST dated TODAY’S DATE.”
A restatement is generally cleaner, and a preferred way to amend trusts, as opposed to amendments. A restatement can be done by the trust’s original drafting attorney, or a brand new attorney who’s never dealt with this particular estate in the past.
It’s important to note that a Restatement is NOT “starting over” in the eyes of the law. The restated trust keeps the original trust’s name. No extra asset re-titling steps are needed after execution of a Restatement.
Both the Amendment and the Restatement described above are ways to change an existing trust. But in some circumstances, it is impossible to “save” the old trust and is preferable or necessary to start over.
For example, if you had a marital trust as a married person and now are divorced, we cannot really “save” the old trust and must start over, drafting you a brand new trust, as a single person. Also, if you didn’t like the name of the old trust, we’d also start over, drafting you a new trust with your preferred trust name.
If your old trust was properly funded, meaning all the assets that should have been titled to the trust were in fact titled to the trust, then you’ll typically need to transfer those assets out of the trust into your own name, and then transfer them into your new trust.