Trust Amendment Requirements

By Jonathan Layton, J.D.

Trust Amendment Requirements

By Jonathan Layton, J.D.

After you have set up a living trust, there may come a time when circumstances change, and you need to amend your trust provisions.

Revocable living trusts generally allow you as the grantor—and usually the initial trustee—to change or revoke the trust at any time. In contrast, an irrevocable living trust severely limits or prohibits amendments. If you have an irrevocable living trust, consult a knowledgeable attorney about whether an amendment is feasible.

Reasons to Amend Your Trust

Common situations that indicate a change may be needed are marriage, divorce, birth or adoption of a child or the death of a beneficiary or a trustee. Amending your trust may also be called for if you want to change the way your property will be distributed, change trustees, or move to a state with different inheritance laws.

If your trust is properly prepared, adding or removing property does not require a trust amendment. Most revocable living trust agreements do not state what property is in the trust and allow the grantor to add or remove property at any time. With property that has some type of title document—such as real estate, motor vehicles, or stocks and bonds—this is simply a matter of transferring the title to or from the trust in the manner required by law. For other property, a written statement can be created that describes the property and indicates whether it is being added to or deleted from the trust.

Three Ways to Change Your Trust

A revocable living trust can be changed in three ways:

  1. Add a revocable living trust amendment: An amendment is a supplemental document that indicates which trust provisions are being changed. It is kept with, or is attached to, the original trust document, and the two documents must be read together. This is similar to a codicil to a will, in which the will and the codicil must be read together to determine the maker's intentions.
  2. Restate the trust: If you restate your trust, you create a completely new trust document that entirely replaces, or supersedes, the original trust agreement. All property held by the trust remains in the trust. This is more often done when several provisions of the original need to be changed or to avoid the confusion that might be caused by several amendments added over time. Restating the trust leaves just one document to be consulted, thereby avoiding the requirement to compare the revocable living trust amendment form with the original document to figure out what has changed.
  3. Revoke the trust: This approach entirely cancels the trust. This may be desirable if you determine that you can achieve the same probate avoidance and tax benefits by other means, such as through joint ownership or beneficiary designations.

Desired changes should never be marked on the original trust document, such as by crossing out or writing in new provisions, even if they are initialed. Nor should any pages be removed or substituted. Any such actions could give rise to legal challenges to the trust in the future.

Preparing an Amendment Document

To prepare an amendment to your trust, read your existing trust document to see whether it includes any provisions about amending it. Be sure you follow any requirements and state laws.

An amendment should be titled as an amendment to the existing trust, stating the name and date of the original trust. For example: “Amendment to the James Johnson Revocable Living Trust, dated July 1, 2012." It should also clearly state what provision is being changed and the terms of the new provision. For example: “Article III, Section 2, is amended to read as follows: I hereby designate my daughter, Jane Johnson, as my successor trustee."

A restated trust will be titled as such. For example: “Restatement of the James Johnson Revocable Living Trust, dated July 1, 2012."

A revocation will be titled as such. For example: “Revocation of the James Johnson Revocable Living Trust, dated July 1, 2012." You may revoke a trust amendment or restatement in a similar manner.

The new document should be signed by the grantor(s). If someone other than a grantor has been appointed as the trustee, the trustee should also sign, with a notation that they are signing as the trustee. All signatures should also be notarized.

Anyone who received a copy of the original document should be given a copy of the new document. If the original was filed with a government agency, such as the county clerk or probate court, be sure to file the new document there.

Amending a revocable living trust is not complicated, but it must be done with care and follow local laws.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.

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