Making Changes to an Estate Plan
Feb 01, 2015 01:36PM ● Published by Jennifer Neys
by Daniel DuRee
Regardless of how well drafted our estate planning documents are, life changes inevitably require changes to our estate plan. The type of change and the document it affects determine how we make these alterations. Below are methods for making changes to the following estate plan documents.
Life changes which alter how you wish to distribute your assets or who you want to be in charge of that distribution are changes that involve the living trust. A living trust is changed by doing an amendment to the trust. An amendment is a separate document that will be attached to the trust and describes the changes that will be made. The downside to a simple amendment is that when you are gone, people will see the original trust as well as the change. So if you are making a change that may hurt feelings of a loved one (such as removing one child as successor trustee in favor of another), you can always do a restatement, which is basically a complete new version of the trust with the new terms. With a restatement, there is no evidence of what the original terms of the trust were.
With a trust based estate plan, a pour-over will is generally used which leaves everything to the trust. Because of this feature, if you are making a change in asset distributions, you do it though an amendment to the trust rather than changing the will. However, if you are changing who you wish to be in charge of your estate when you pass away, you should also change the executor of your will. A will is changed by creating what is called a codicil. It is similar to an amendment to a trust and is a separate document that is then kept with the will.
Durable Power of Attorney or Advance Healthcare Directive
If you wish to change who will be in charge of your financial, personal, or healthcare management should you become incapacitated, you will need to appoint a new agent under your durable power of attorney and/or advance healthcare directive. There is no amendment method to these documents, and new documents will be drafted.
Remember when making any changes to a will or a trust that the same execution requirements apply, so a trust amendment must be notarized, and a will must be witnessed by two independent witnesses. If you have any questions about changes to your estate planning documents, please feel free to call my office.