Can I Amend a Trust?

A couple of generations ago trusts were used mainly by people with significant assets they were leaving behind. Today, trusts have evolved to the point where even the average estate planner can benefit from the creation of a trust. What happens though if you want to amend a trust?

Whether or not you can amend a trust depends on what type of trust you created. Testamentary trusts are trusts that take effect when you die and are incorporated into your Will. A testamentary trust can be amended at any time before you die. A living trusts, however, can only be amended if it is a revocable trust.  Absent court approval and exceptional circumstances, the terms of an irrevocable trust cannot be amended.

For relatively small changes, you can change a living trust by completing a trust amendment. This allows you to make all the changes that need to be made on one piece of paper and “amending” it to the original trust document. For more extensive changes, you may wish to use a trust restatement. This allows you to essentially re-do the trust while still incorporating the original trust date. While it may be tempting to simply try and make “margin notations” to change something small in a trust document, this is usually not a good idea because it can be confusing and could open the document up to a challenge.

If you decide that a change is necessary to a trust you have created, be sure to consult your estate planning attorney to determine the best way to effectuate the change.