Trusts can last for decades. Over time events may (most likely will) cause you to change provisions in your trust. Perhaps your minor child is now an adult, the main beneficiary of the trust is deceased, or new additions to the family have changed your priorities.
The first step to amending a trust is to look at the trust document itself. Typically there will be a provision stating how the trust can be amended. Most trusts state that the trust must be amended by signed writing of both settlors. If one of the settlers is deceased, some aspects of the trust may be unable to be changed. If a signed writing is required, making notes in the margins or striking terms that you no longer want apply may not be effective. Some trusts may require that the trust be revoked and then amended. Therefore, it is necessary to consult an attorney with expertise in Estate Planning.
The two most common ways of amending the trust are either 1) amendment by restatement, or 2) Amending trust provisions that you want changed. The amendment by restatement reproduces the entire document with changes made internally in the restatement. The benefit of this method is that when many changes are made separately the document may be hard to understand – requiring the trustee to constantly refer between the two documents. Further, it may be simpler when there are great deal of changes that need to be made. One drawback is that the changes may not be readily apparent on the face of the document. Further, if the trust had been drafted many years ago, many references to state or federal law may have to be changed, which can easily be done in this manner.
Individually amending trust provisions that you want changed are preferable when the changes are few. The benefit is that it can save time and money going this route. Further, the changes are readily apparent to the reader – and the client. Both of these methods do not require the trust property to be refilled.
It is important to note that if you have a pour over will, a codicil is required because the will would be referring to a trust that no longer exists (because it had been amended). If you find yourself in this situation, contact an attorney and they will be able to walk you through the process.