Amendments to your Living Trust
The Right to Amend a Living Trust
Reasons for a Living Trust Amendment
Practicalities
Notarization of the Amendment
Amending a living trust is usually easier then revoking and recreating the trust with different clauses in it, because the revocation-option would require to transfer the property of the old trust to the new one. Therefore living trust amendments are quite common.
The Right to Amend a Living Trust
As long as the grantor of a revocable living trust is alive and mentally competent, the declaration of trust and therewith the living trust itself can be changed at any time by the grantor. If you have a shared living trust, both spouses must agree to any amendments of the living trust.
Normally no one else is entitled to amend the living trust. However the trust document can include an authority transfer clause, which explicitly grants the authority of changing the trust to a third party. These clauses are generally drafted for the case that the grantor becomes incapacitated. Authorization could for example be given to the successor trustee or the surviving spouse as far as a shared living trust is concerned.
Reasons for a Living Trust Amendment
There are plenty of wherefores that require the trust document to be amended. The most frequent reason to amend a living trust is the sale of trust property. Other events, that require a change, might be a marriage or the birth of a child. The trust might have to be amended if the grantor moves to another state in order to response to the new state law. Another reasons might be a name change of the grantor or the death of the spouse or of a major beneficiary.
Practicalities
The amendment to the trust is usually conducted by attaching a new document to the original trust document. The new paper is normally titled “Amendment to the Living Trust”.
It is very important to refer to the original trust document. The trust name and the creation date should be mentioned to ensure proper identification of the original trust. Then the amendments are listed below.
The amendment document can either stipulate the deletion of existing clauses or the addition of new clauses. However each amendment should refer to an exact item of the original trust. If you delete a clause, the number of the clause should be named and, to be sure, the text of the clause should be repeated here. If you add a new clause, the new text and its position within the original declaration of trust should be named.
As the added clauses are treated as if they were included within the original document, it is very important that the amended living trust stays clear and consistent after the amendment. Being a Bay Area trust attorney, I know that it is very easy to amend inconsistencies and other logical errors into a living trust. Therefore the utmost care is necessary to avoid such errors.
The avoidance of logical errors is even harder when more than one amendment is made. The living trust documents (original and amendments) can then be confused very easily. Therefore lawyers tend to draft a restated version of the trust document, that substitutes the former declaration of trust for the consolidated one. If you do this you have to be very diligent, not to change sections of the living trust document by mistake.
Notarization of the Amendment
The amendment then needs to be signed and attached to the original document. The signature of the amendment should also be notarized as if a new declaration of trust would be signed.
Reasons for a Living Trust Amendment
Practicalities
Notarization of the Amendment
Amending a living trust is usually easier then revoking and recreating the trust with different clauses in it, because the revocation-option would require to transfer the property of the old trust to the new one. Therefore living trust amendments are quite common.
The Right to Amend a Living Trust
As long as the grantor of a revocable living trust is alive and mentally competent, the declaration of trust and therewith the living trust itself can be changed at any time by the grantor. If you have a shared living trust, both spouses must agree to any amendments of the living trust.
Normally no one else is entitled to amend the living trust. However the trust document can include an authority transfer clause, which explicitly grants the authority of changing the trust to a third party. These clauses are generally drafted for the case that the grantor becomes incapacitated. Authorization could for example be given to the successor trustee or the surviving spouse as far as a shared living trust is concerned.
Reasons for a Living Trust Amendment
There are plenty of wherefores that require the trust document to be amended. The most frequent reason to amend a living trust is the sale of trust property. Other events, that require a change, might be a marriage or the birth of a child. The trust might have to be amended if the grantor moves to another state in order to response to the new state law. Another reasons might be a name change of the grantor or the death of the spouse or of a major beneficiary.
Practicalities
The amendment to the trust is usually conducted by attaching a new document to the original trust document. The new paper is normally titled “Amendment to the Living Trust”.
It is very important to refer to the original trust document. The trust name and the creation date should be mentioned to ensure proper identification of the original trust. Then the amendments are listed below.
The amendment document can either stipulate the deletion of existing clauses or the addition of new clauses. However each amendment should refer to an exact item of the original trust. If you delete a clause, the number of the clause should be named and, to be sure, the text of the clause should be repeated here. If you add a new clause, the new text and its position within the original declaration of trust should be named.
As the added clauses are treated as if they were included within the original document, it is very important that the amended living trust stays clear and consistent after the amendment. Being a Bay Area trust attorney, I know that it is very easy to amend inconsistencies and other logical errors into a living trust. Therefore the utmost care is necessary to avoid such errors.
The avoidance of logical errors is even harder when more than one amendment is made. The living trust documents (original and amendments) can then be confused very easily. Therefore lawyers tend to draft a restated version of the trust document, that substitutes the former declaration of trust for the consolidated one. If you do this you have to be very diligent, not to change sections of the living trust document by mistake.
Notarization of the Amendment
The amendment then needs to be signed and attached to the original document. The signature of the amendment should also be notarized as if a new declaration of trust would be signed.
