As your estate plan grows and becomes more comprehensive, incorporating a trust may help you achieve additional and ever-evolving estate planning goals. Over time, you may find it necessary to alter the terms of the trust you created. With that in mind, the Los Angeles attorneys at Schomer Estate & Wealth Advisors discuss whether a trust can be changed and what options are available to make changes to an existing trust.
Understanding Trusts
A trust is a legal agreement that allows you (the Grantor) to transfer assets to a Trustee to be managed for the benefit of third party beneficiaries. Trusts are categorized as either testamentary or living (also known as inter vivos) trusts. Testamentary trusts are created through the provisions of a Last Will and Testament and only take effect after the Settlor’s death. In contrast, living trusts are established and activated during the Grantor’s lifetime.
Are Trusts Modifiable?
Whether you can modify a trust depends largely on the type of trust involved because living trusts can be revocable or irrevocable. Whether the trust involved is revocable or irrevocable will directly impact on your ability to make changes. As the name suggests, a revocable trust allows the Grantor to make changes or revoke the trust entirely at any time and for any reason (or for no reason). Irrevocable trusts are much more rigid. Once created, the Grantor cannot modify or revoke the trust. Changes are possible only through the consent of the beneficiaries or a court order, but the Grantor is not allowed to initiate changes. Because testamentary trusts are connected to a Will and take effect only after death, testamentary trusts are inherently revocable during the Grantor’s lifetime, as is a Will; however, once the trust takes effect it becomes irrevocable since the Grantor is no longer alive.
Ways a Trust Can Be Changed
If the trust involved is a trust that allows changes to be made to the trust agreement, there are three primary methods to make those changes, including:
- Amending the Trust: A trust amendment is suitable for small changes, especially if the trust has not been altered previously. To amend a trust, identify the section you want to revise and document the change on a separate document labeled “Trust Amendment.” Attach the amendment to the original trust document. Depending on your state’s laws, you might need a notary or your Trustee’s signature to formalize the amendment.
- Restating the Trust: When you need to make more significant changes or the trust has already been amended, a trust restatement is often the better choice. This involves rewriting the trust agreement to reflect all updates while keeping the original trust intact. A restatement avoids revoking the trust entirely, preventing unnecessary complications. Like amendments, restatements may require notarization and signatures.
- Revoking the Trust: You have the option to revoke a trust and create a new one; however, this approach can be cumbersome and often has tax or administrative implications. When a trust is revoked, its assets revert to their original owner and must be transferred back into the new trust, which may complicate matters. For this reason, restating the trust is usually the preferred alternative to starting over.
Whether and how you can modify your trust depends on the type of trust you created. Understanding your options ensures that your trust continues to meet your estate planning objectives while minimizing complications. Consulting with an experienced attorney is the best way to ensure any modifications are legally sound and properly executed.
Do You Have a Trust That Needs to Be Changed?
For more information, please join us for an upcoming FREE seminar. If you have an existing trust agreement that needs to be changed, contact the experienced Los Angeles estate planning attorneys at Schomer Estate & Wealth Advisors by calling (310) 337-7696 to schedule an appointment.
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