One of my clients made an appointment to amend his trust. When he brought it in I might have overreacted just a little bit when I let out a loud gasp after seeing the writing on the original trust. The client had crossed out some information, added additional beneficiaries, made notes in the margin as to deceased persons, etc. Fortunately, since I had prepared the trust, I was able to simply reprint the affected pages as though the writing had never occurred.
Though I always tell my clients never write on the original trust, after time some people forget this simple rule.
Because I give my clients both the original and a copy of the trust, it is simple for the clients to make notes on the copies. Writing on the originals can create untold problems and may even invalidate the intended amendments or the trust itself.
Most trusts state that amendments must be done with the same formality as the creation of the trust. This means that the amendment should be in a separate document which is signed, dated, and notarized. Simply writing the changes on the original or a copy of the trust does not make those changes legally effective and could cause the trust to wind up in a court proceeding.
The original trust and all amendments need to be read together. When an amendment is created, the amendment should be put in front of the original trust so that if anyone looks at the trust the first document, they should see is the amendment. It would be unfortunate to have someone read an entire trust only to overlook the amendment because it is located in a separate place or commingled with other documents.
It is not uncommon to have as many as three or four amendments to a trust; however, at some point after many amendments it is best to just do what’s called a “restatement” of the trust. The restatement incorporates all the desired amendments so that one doesn’t have to keep referring to separate documents to make sense of the trust.
If you change the successor trustee on your trust, you should also make the same change on your pour-over will and power of attorney. The best practice is to have the same person over your finances. Therefore, you will need to do a codicil (amendment) to your will and a new power of attorney.
In summary, remember a few simple rules: 1) never write on the original trust, 2) get a formal amendment to the trust if you want to make a change to the trust, and 3) if you change your successor trustee, make sure the same change is made on your other core documents.
© 2020 by Marlene S. Cooper. All rights reserved.
(You may obtain further information at the website www.marlenecooperlaw.com, by e-mail at MarleneCooperLaw@gmail.com, by phone at (626) 791-7530 or toll free at (866) 702-7600. The information in this article is of a general nature and not intended as legal advice. Seek the advice of an attorney before acting or relying upon any information in this article).