Amending Wills and Trusts
Though amending your will or trust might sound like a confusing, daunting task, it is a rather straightforward process. While it’s not as simple as just taking a red pen to your will and scribbling out the parts you don’t like, amending your estate plan can be just as easy with the help of a proper lawyer. Before we get into the brunt of it, let’s start by going over some of the reasons why you might want to amend your estate planning documents in the first place.
Why Amend Estate Planning Documents?
The world is a fast-paced and everchanging place, so naturally the circumstances surrounding your life and, by extension, your estate plan, will differ from when you first drafted it. There is a plethora of factors – having more children, the acquisition of more assets, falling out with friends, marital disputes, changes in estate planning law, to name a few – that will call for some revision to your estate plan. Therefore, it is imperative to the wellbeing of your estate that you review relevant documents, such as wills and trusts, at least once per year to ensure that they are up-to-date. In the instance that you feel a change, or amendment, to your estate plan is necessary, here are a couple of ways to do so with the help of a well-trained lawyer:
If you’re mentally and physically competent, and seeking to change, add to, or revoke your will, you can draft what is called a codicil, which is legal jargon for an amendment to a will. Codicils must be executed to be honored in court, so they require the same formalities as when executing a will. Codicils are best kept for minor changes to your will. If you are making substantial changes, it is often better to scrap your old will and draft an entirely new one, since the formalities for executing it are the same as for a codicil, while the likelihood for unforeseeable mistakes and ademptions is lesser. Make sure that your new will is dated and includes a sentence stating that it revokes all old wills. Consult your lawyer as for what to do with your old will, as there is currently no legal consensus on whether it should be destroyed before your witnesses or kept to avoid arguments over undue influence.
Amending a trust is generally much less complicated than amending a will, as it requires less of the formalities. You’ll need to amend your trust when you want to change or add beneficiaries, change the disposition of assets in the trust, or when you want to change your trustees. Amending a trust to add property is only required if the property is going to a different beneficiary than the one already named in the trust, or if the trust has more than one beneficiary listed; otherwise, a properly worded trust will allow you to add property after the trust is drafted without any additional amendments. Generally speaking, an amendment to the trust must explain the changes, specify the additions or deletions, and be signed and dated. Unlike a will, you shouldn’t revoke an old trust and make a new one when making substantial changes. Instead, you should simply restate your trust with all the changes included, as this ensures that all assets will remain in the trust. It should be noted that you should never detach a page from your trust, type new information over it, and put it back into the original document, as this invites a whole plethora of new legal challenges.