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Changing Your Will or Trust



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 resolved.

Remember, one 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 the document.

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.

Remember, we also do complete estate preservation and asset protection packages nationwide for your security and protection.


 

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C. Francis Baldwin
916.722.0667 (office)
916.729.7468 (fax)
BTG2015@gmail.com
Updated Sunday, August 28, 2016
 

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