A trust amendment is a legal document that revises specific provisions of a revocable living trust or an “inter vivos” trust. It is only intended for making changes to specific provisions, while leaving the rest of the document in its original form and other provisions unchanged. This differs from a trust restatement, which is a complete amendment to the initial trust document, replacing and superseding the prior document in its entirety. Trust amendments can be freely made to revocable trusts, as opposed to trusts such as special needs trusts and irrevocable trusts which are more difficult to modify and would require an experienced attorney to advise on the best way to do so.
When can I make a Trust Amendment?
A trustmaker is free to make amendments to their trust at any given time so long as they are alive and hold testamentary capacity. Testamentary capacity refers to the ability of a person to make a valid will. Many states have adopted both the age and mental capacity component requirements. Meaning that an individual must be of at least 18 years of age and have the ability to know the nature and extent of his or her actions as well as to the disposition the will is making. Minimal changes such as adding or removing specific provisions, updating beneficiaries or appointing another individual as successor trustee can all be completed through a trust amendment whenever the trustmaker chooses. Other modifications like adding newly acquired property or a recent marriage or divorce can and should be amended to your living trust as soon as possible, as this is a major life change that warrants amending a trust.
Does an Amendment to a Trust need to be Notarized?
Depending on specific state statute, an amendment to a trust may need to be notarized, in addition to being signed and witnessed by two separate individuals. Nonetheless, not all legal documents need to be notarized. A will for example, does not have that requirement, but the corresponding self-proving affidavit of the will does. The purpose of a notary is to ensure that all parties, including the witnesses, are of sound mind and understand exactly what they are doing. In Florida, anytime a trust amendment is created, it must be notarized in order to become enforceable. Not only does the trust amendment become official, it also becomes legally binding once it is notarized.
Do I need a Lawyer to Amend my Living Trust?
A trustor is not required to retain an attorney to amend their trust document and is able to amend his or her own trust on their own, however, we highly recommend having a competent and experienced trusts and estates attorney there to assist you with making sure that the amendment is prepared and executed properly to avoid any type of potential ambiguity, ensure that the changes are accurately reflected, and to ultimately make sure the amendment fully complies with current law. It is also important to note that trust amendments must be done in accordance with the provisions stipulated in the original trust agreement. In any case, it is best to seek out legal assistance to avoid invalid amendments or other informalities that may arise when preparing and amending your own trust.
