Amending a Revocable Living Trust
How to Update a Living Trust
Amending a revocable living trust is surprisingly easy—just one of the many benefits of using one as the foundation of your estate plan. In fact, trusts are easier to tweak than wills when you're scrambling to keep up with life's events, and you have three options for doing so.
A revocable living trust gives you the flexibility to make changes to the terms of your trust agreement whenever necessary. You can even revoke the trust at any time. You just have to be mentally competent.
These rules apply only to revocable living trusts. Irrevocable trusts are completely different. As the name suggests, an irrevocable trust is set in stone after it's created. You can't undo it or amend it, although your beneficiaries might have some options under very narrow circumstances.
You Don't Have to Amend a Trust to Add Property
Living trusts are already set up and designed to deal with accepting additional property you might want to fund into them over the years. That's their purpose, after all—to hold onto your property for you so it bypasses probate at the time of your death.
Your trust should already include language allowing you to transfer more property, assuming it was properly drafted.
How to Amend a Revocable Living Trust
You can make changes to your trust in one of three ways. Which is best depends on what you want to amend and other circumstances.
- You can prepare and sign a trust amendment that's valid under your applicable state law.
- Sign a complete trust restatement that's valid under your applicable state law.
- Sign a complete revocation of the original trust agreement and any amendments, then transfer the assets held in the revoked trust back into your own name. You can then create and fund a brand new revocable living trust if you choose.
Option 3 is radical, time-consuming and often expensive. It might only be necessary if you're making sweeping, significant changes to your initial trust agreement.
A trust amendment or restatement is typically appropriate if you just want to change or add beneficiaries, if you marry or have a child, or if you divorce, always assuming your ex isn't a co-trustee.
You do not want to make changes by simply crossing something out or writing in the margins of your original trust documents, nor should you detach any pages and substitute others. These types of changes can be overturned by a court if any of your beneficiaries challenge them, not to mention that they'll no doubt create a major headache for your successor trustee.
A Trust Amendment
A trust amendment changes one or more provisions of the trust without revoking or undoing it, but this method can become confusing if you make numerous changes, amending again and again over the years.
Your successor trustee—the individual who takes over to manage and settle the trust at the time of your death or if you should become mentally incompetent—might have several additional documents to sort through and make sense of if you create numerous amendments.
Restating your trust involves creating a single document that states that you're not revoking the original trust agreement but are restating it with some amendments.
Your trust stays in place, and you don't have to move property out of it then back into it as you would if you revoked the trust entirely.
You won't have to worry about forgetting or overlooking an item of property in the shuffle, either, inadvertently neglecting to re-fund it back into the trust. Everything remains in place with a reinstatement, other than the specific terms that you want to change.
The restatement document is sometimes referred to as an "Amendment and Restatement of Declaration of Trust." It details your changes. The restatement document should specifically say that all other provisions of your trust remain the same, or you can repeat the contents of your original trust agreement while incorporating your changes.
The result is the same: Your trust wasn't undone or revoked, so you don't have to retitle all the property it holds. It can continue to hold ownership of all assets you've placed within it as long as it's not formally revoked.
If You're Married
Either you or your spouse can generally revoke your revocable living trust at any time if you're co-grantors and co-trustees—you formed the trust and have managed it together. You must both agree to the changes in writing, however, if you want to change provisions, either with an amendment or a restatement.
It's Not Just About Your Trust
You probably also have a pour-over will, one that "pours" into your trust any assets you own at the time of your death that never previously made it into your trust for one reason or another. You can include a sentence in your pour-over will to the effect that it "includes all amendments made by me from time to time." Then you won't have to create a new pour-over will whenever you restate or amend your trust.