The situation is common. A client has a will, trust, power of attorney or
healthcare directive prepared by themselves, legal counsel, a para-legal, a
trust preparation company, etc. and sometime later they want to make changes
to the estate plan. The question is, how should those changes be made?
First, one should never, never, never hand write or type changes to the face
of an existing will or trust except for designed sheets such as Schedules or
specific gift pages. The cost of paying for a properly drafted and executed
change to an existing estate plan document is far less than the amount that
the beneficiaries and estate administrator would pay to separate legal
counsel to determine the effect of the handwritten change.
Any estate planning professional could share experiences of negative effects
on families caused by handwritten changes to estate planning documents.
Almost all estate administration problems that result in litigation stem
from handwritten changes to the will or trust. When family members or other
beneficiaries have to rely on judges and the judicial system to have the
estate settled, there are often ill feelings created that may never be
should never confuse "justice" with the "American legal system." If you got
"justice" it was strictly by accident.
Although no one wants to create problems between beneficiaries of the
estate, even small handwritten changes can create great problems. The
question is always what should govern - the handwritten change or the
original provision? The question is almost never clear and can almost always
be argued either way.
Additionally, there is almost always a question as to whose handwriting it
really is. The legal formalities that exist with respect to executing estate
planning documents and changes to those documents were developed to prevent
the first person that finds the will or trust from changing the terms by
penning or typing changes of their own to the document. The necessary
formalities are not satisfied when handwritten or typed changes are made to
It is important to note that in almost all situations, one can, with proper
assistance, effectively change an estate plan. Although some estate tax
savings trusts (life insurance trusts, credit shelter trusts, etc.) are not
amendable, most estate planning trusts are revocable, amendable trusts.
Additionally, wills are almost always revocable and amendable.
In changing a revocable trust, one would execute either an amendment or a
complete restatement to the trust. Usually, if the changes are not
significant, it is possible to execute an amendment to the trust.
If it is necessary to completely restate the trust, the new trust will be
executed with the same name as the old trust. When restating the trust, the
new version can stand alone and the old version can be discarded. By using
the old trust's name when doing a restatement, it is possible to avoid the
need to retransfer already transferred assets to the trust. The assets
remain in the new restated trust.
If one does not want their beneficiaries to know what was in the earlier
version of the trust, it may be preferable to execute a restatement even if
the changes are minor.
When changing a will, one can either execute a new will or a codicil to an
existing will. A codicil can add to or change the terms of an old will.
Again, if a new will is executed, the old will can and should be discarded.
In conclusion, almost all estate planning instruments are amendable.
Although the documents can be changed, it is almost never a good idea to
change the documents by handwriting or typing the changes on the face of the
document. Handwriting or typing on the face of the document will almost
certainly lead to questions about the effect or validity of such changes.
Such uncertainty will likely result in disputes between beneficiaries. These
disputes can be both financially and emotionally draining.
Please have The Baldwin
Trust Group review (at no cost) your existing documents and complete the
required amendments or codicils for your will or trust portfolio. Call or
contact us for pricing based on the work you want done.
we also do complete estate preservation and asset protection packages
nationwide for your security and protection.