AMENDING, RESTATING AND DATING YOUR LIVING TRUST

The date of your living trust is the date it was first signed.   This never changes.  Thus, the John H. Smith Revocable Trust U/A/D 06/24/2012 does not acquire a new name or date no matter how many times it is amended or restated.   If the trust is revoked and a new trust is created with the same name, the date of the new trust will be the date is it signed.  But the date of the old trust does not change.

Occasionally clients create multiple irrevocable trusts over a period of years, each having the same name.   In these circumstances the dates are especially important, since they are the primary means of differentiating one trust from another.

How do you amend a living trust?  There are two alternatives.  One is to prepare an amendment containing only the revised paragraphs.  The other alternative is to restate the entire trust agreement, and “bury” the amendments in the new document.  In general, a restatement is superior to an amendment.  First, it is tedious to compare a trust agreement with one or more amendments and try to discern which provisions have changed.  Second, and more important, it is usually better not to provide beneficiaries a road map to track the rise and fall of their fortunes as the trust is changed over the years.  If a restatement is used, prior versions of the trust basically disappear.  Many years ago, restatements were seldom used because of the extra typing involved.  However, thanks to the efficiency of modern word processing software, a restatement usually takes less time than an amendment.

 

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