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THINKING ABOUT CHANGING YOUR TRUST? DECIDING BETWEEN AN AMENDMENT AND RESTATEMENT by Joan M.Grimes. and Jennifer L.Wallis
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Are you thinking about changing your Revocable Living Trust (“Trust”)? When considering a change, many clients ask whether they can simply amend the Trust or whether the entire Trust should be restated. Simply amending sounds easier, right? But, here are a couple of things you should know. In general, if you wish to make a minor change (i.e. changing Successor Trustees or adding a Co-Trustee), an amendment is fine. Go for it! However, a restatement is recommended for major changes. For example, if you decide that you want to remove a beneficiary or change your distribution scheme, a restatement is a better option. You might ask why this is necessary when an amendment sounds easier. This is because the law requires that after you die, a copy of your trust plus all amendments must be provided to any named beneficiaries and your heirs at law. For example, let’s say after careful consideration you decide you want to remove your friend, Sally, from your Trust. If you only remove Sally from your Trust by amending your trust, when you die Sally will receive a copy of you original Trust (which includes her as a beneficiary) plus the amendment in which you removed her from your Trust. (Awkward!) However, if the Trust is restated rather than amended, the restated Trust supersedes the prior Trust and any amendments. Therefore,
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under this restated Trust, Sally will not be entitled to receive a copy of your Trust since she is not included anywhere in your new restated Trust. The good news is that restating your Trust is simple and does not require your new restated Trust be funded again (i.e. you don’t need to record new deeds for real property, change any bank accounts or other assets that are already in the Trust). This is because the restated Trust will have the same name and date as your original Trust. Since the name and date of the restated Trust will be the same as the original Trust, you won’t need to fund your Trust again. So what’s the point? If you have a Trust, you should review it to make sure it still says what you want. If you decide you want to remove Sally or make another major change, you should consider a restatement rather than an amendment. If you would like us to review your Trust, we see people every day for a FREE 30 minute consultation in Walnut Creek and Brentwood. This article provides only general legal information, and not specific legal advice. Information contained is not a substitute for a personal consultation with an attorney. LAW OFFICE OF JOAN GRIMES, PHONE (925) 939-1680 1600 S. Main Street, Suite 100, Walnut Creek, CA 94596; 191 Sandcreek Road, Suite 220, Brentwood, CA 94513 © 2018 Joan Grimes – Advertisement
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