Natalia Vander Laan
Regularly updating an estate plan is an important task that should not be overlooked. An estate plan is a vital tool for ensuring that one’s assets are properly managed and then distributed according to the grantor’s wishes.
The process of updating an estate plan starts with a review of current documents in order to determine if any changes are needed. The need for changes can be a result of a move from state to state, marriage, divorce, or simply a desire for a different arrangement. Sometimes, changes in laws can also lead to the need for amendments.
A trust can be amended or restated. A trust amendment is a legal document that modifies specific provisions of a revocable living trust by either removing them or replacing them with different language. A trust restatement completely replaces and supersedes all the original trust provisions.
There are no strict rules dictating whether an amendment or a restatement should be utilized. When the changes are nominal and limited, an amendment is typically sufficient. On the other hand, when making large and significant changes throughout the entire document, a restatement would likely be recommended as it will result in the creation of a clear and comprehensive document. Furthermore, if there are multiple previous amendments, a restatement can consolidate multiple documents into one complete document that is easy to follow.
When a revocable living trust is amended or restated, typically the original name and date of the trust remains the same. Consequently, all the assets previously transferred to the name of trust remain owned by the trust without a need for any additional action. An amendment or restate-ment typically must be executed with the same formalities as the original trust. If the changes to trust impact the content of the certification of trust, this document has to be restated as well.
Like the trust, a last will and testament can be amended, or a new will can be created. An amendment to a last will is called a codicil. Oftentimes, it is clearer to simply make a new will. A codicil or a new will has to be executed with the same formalities as the original will.
In order to amend powers of attorney, the safest option is to revoke the existing document and to prepare a new one. When a new power of attorney is drafted, the revocation of the old document can be included within the new document.
In some rare situations, the creator of the estate plan may not wish to make any changes but rather wishes to revoke the entire estate plan. Any revocation must be in writing and oftentimes has to be notarized or witnessed as well as delivered to the trustees or agents or even recorded.
An estate planning legal document should never be amended, restated, or revoked by simply writing on the document and noting the desired changes. Each document follows its own specific procedures.
When changes to an estate plan are needed, it is recommended to consult with an estate planning attorney who can assist with the necessary updates. The attorney should also be able to advise on the best strategies for protecting the assets and ensuring that one’s wishes are properly carried out.
Natalia Vander Laan is a Minden attorney.
