Does an Amendment to a Revocable Trust Need to Be Notarized and/or Witnessed After It Is Signed?

By John Stevens J.D.

A revocable living trust is an intangible entity that serves as a means of transferring property after the death of the trust creator. Unlike a person, a revocable trust does not die, so probate is generally not required when handling a trust. A key benefit of a revocable trust is the ability of the trust creator to amend it. Depending on the circumstances, the signing of an amendment may or may not require witnesses and/or notarization. When in doubt as how to proceed, an estate planning attorney should first be consulted.

Notarization and Witnesses

The signing of estate planning documents, including revocable trusts, are frequently witnessed and the signatures notarized as a matter of custom. Most states do not require either for creating or amending a living trust. Although there may be no such requirements under state law, it is a good idea to at least have the document notarized. A revocable trust document usually specifies the method by which it can be amended. For this reason, the language of the trust that allows for amendment should be reviewed carefully. If the trust document requires witnesses and/or a notary public, failing to abide by these requirements could render the amendment ineffective.

Pour-Over Wills

Revocable trusts are often created in conjunction with a separate document called a pour-over will. Only the property held by the revocable trust passes to the beneficiaries of the trust. Some assets, such as checking accounts and automobiles, are not transferred to the trust. Some banks, in fact, will not change the title to a checking account to reflect a trust. A pour-over will is designed to automatically transfer any assets that were not included in the trust into the trust upon the death of the trust creator. Unlike with a revocable trust, witnesses are required for most wills. Unless a state law says otherwise, the signature need not be notarized, however.

Protect your loved ones. Start My Estate Plan

Updating the Pour-Over Will

A pour-over will incorporates the terms of the trust when the will is signed. Amending a revocable trust, by definition, changes the terms of the trust. As a result, the pour-over will refers to a trust that no longer exists. In this event, the will could fail to transfer items into the trust. To ensure that the will reflects the amended trust, either a new pour-over will should be signed (and witnessed) or the will should also be amended (and witnessed) to reflect the amended date of the trust.

Witness Attestation Clause

If witnesses are used for the amendment, the witness signature page should include a witness attestation clause to minimize the possibility that a court will require the presence of the witness to answer questions about the signing of the amendment page. An attestation clause is language included on the witness’ signature page that describes the circumstances surrounding the signing of the amendment, such as the date of the signing, whether the person amending the trust appeared to understand what he or she was doing, and whether the witnesses watched the signing of the amendment.

Protect your loved ones. Start My Estate Plan
Amending a Testamentary Trust
 

References

Related articles

Can a Person Write Their Own Will & Then Have It Notarized?

In this age of technology, writing out a will by hand may not be the norm, but it is a perfectly acceptable alternative to typed or printed wills. The key to making an effective handwritten will is knowing your state laws regarding whether witnesses are required and, if so, how many.

Do Trusts Need to Be Notarized?

Whether a trust document needs to be notarized depends on its purpose and state law, but notarization is a requirement in many states. A notary public is commissioned by state or local governments primarily to certify signatures on documents ranging from wills and trusts to contracts. Beyond simply witnessing as you sign a document, the notary is charged with verifying your identity and making sure you are signing willingly and not under pressure.

What Is the Procedure to Cancel an Existing Living Trust?

Sometimes you need to revisit your previous financial planning decisions. If you recently had a major change in income or assets, which often happens following a divorce, the way in which your property is titled or managed may need a complete overhaul. As part of this adjustment, if you have a living trust that you wish to cancel, you may do so by executing the appropriate revocation paperwork.

LegalZoom. Legal help is here. Start Here. Wills. Trusts. Attorney help. Wills & Trusts

Related articles

How to Write an Amendment to a Will

Once a will is written, signed, and witnessed, it is legal in most states as long as it meets state law requirements. ...

Can Someone With the Power of Attorney Change Someone Else's Will Before He Is Dead?

A power of attorney grants an agent, sometimes called an "attorney-in-fact," the authority to act on behalf of the ...

How to Dispute a Power of Attorney

When a person creates a power of attorney, she allows a trusted person named in the document to act on her behalf and, ...

How to Add an Addendum to a Will

Adding an addendum to a will requires a document called a codicil. If drafted appropriately, the codicil will be ...

Browse by category
Ready to Begin? GET STARTED