Some time ago my husband completed a small project for me. He asked how I liked it and I replied, “It leaves a lot to be desired”. He laughed. After more than 41 years of marriage he knows my tongue, my heart and when I am busy and stressed. I then told him, “I need to restate that. What I meant to say was, ‘You did a good job, it just needs a couple of minor adjustments.’” We both laughed.
In my line of work, I hear and read plenty of negative statements people make about their relatives. Clients give countless reasons why one child deserves less than another child, or why an uncle will not be receiving as much as an aunt. But sometimes people change and a relative finds his or her way back into a client’s good graces or sometimes clients see a situation differently and have a merciful change of heart. In these situations they can regret the negative statements they’ve made.
Estate plans sometimes incorporate negative statements or reflect negative opinions. Thankfully, changes can be made. With a will, a client can simply amend or revoke the prior will. The same is true with a living trust; however, in addition to amendment and revocation, there is a third option: restatement. With an amendment the original trust is retained and portions are either added, subtracted or changed in a separate document. Amendments are numbered (for example, the second amendment to the Clark Family trust) and the amendments are read in conjunction with the original trust. With a restatement, on the other hand, all of the wording of the original trust, including any amendments, is wiped clean and replaced with new wording. The name of the trust and original date of the trust are the only things that must be retained. Restatements leave no paper trail, almost as if the original wording never existed.
The choice as to whether an amendment or restatement is desirable depends on the circumstances. Sometimes when I review a trust written by someone else that is poorly written or structured, I suggest that the trust be restated. Also, when there are numerous amendments to a trust, trying to make sense of them all becomes difficult. In this circumstance it is easier to start with a clean document which incorporates all the amendments.
Restatements also come into play in more sensitive situations. When her daughter was suffering drug addiction, I created provisions in a client's trust that addressed the situation in detail. Years later the client asked me to revoke her trust because her adult child had totally recovered from her addiction and the client didn’t want the child to know about the earlier estate plan concerning the addiction. Because the client's home and other assets were already placed under the umbrella of the trust, I advised that instead of revoking the trust it could be restated. In the restatement, all the language concerning the drug addiction was removed.
As humans, we have all said things we regret. Also, we sometimes change our minds about who we want in charge of our affairs or who will receive our earthly goods upon our demise. Luckily, estate planning gives the flexibility and opportunity to start all over again.
[© 2022 by Marlene S. Cooper. All rights reserved. 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.]