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.

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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.

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Amending a Testamentary Trust

References

Related articles

How to Amend a Trust to Reinstate Prior Provisions

The steps for trust modification are generally the same regardless of whether you are creating new terms for the trust or reinstating prior provisions. The process of modifying a trust hinges on the type of trust it is and who wants to amend the terms. Depending on the circumstances, the creator of the trust, parties to the trust, or a local court can reinstate the prior provisions. The laws regarding a trust vary based on the state where the trust is located, although 23 states have adopted the Uniform Trust Code. If you wish to modify a trust, consider reviewing your state’s laws or consulting with an attorney.

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. To change a completed will, you must either add an amendment, known as a codicil, or destroy the will and create a new one. You cannot alter your will by simply crossing something out or adding something new. Writing an amendment to a will is a simple process that is legal as long as it is signed, dated and witnessed like the original will.

How to Add a Page to My Last Will & Testament

As you age, your priorities or circumstances often change and you decide to revise some provisions of your will. One way to add a page to your will would be to revoke the current will and write a completely new will. However, this can be inconvenient and costly, -- and it might not be necessary. You can often include additional property or beneficiaries in your will by adding an amendment called a codicil. Another option is to add a personal property memorandum, which is used to dispose of tangible personal property that is not specifically disposed of in the will.

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