Updating your will or trust is more than a legal task; it’s securing your legacy.
Think about it. Life is an evolving journey and changes in personal circumstances, financial status and relationships are inevitable. These changes often necessitate amendments to previously established estate planning documents, such as wills and trusts, to ensure they accurately reflect your current wishes and circumstances. But how do you amend your will or trust?
Amending Your Will
A will is a legal document that articulates your wishes regarding the distribution of your assets and the care of any minor children upon your death. The need to amend a will or trust can arise from various life events, such as marriage, divorce, the birth of a child, a significant change in assets, or the death of a beneficiary.
To amend a will, you can either add a supplement known as a “codicil” or draft a completely new will.
Codicils: The Traditional Method
Traditionally, minor changes to a will are made through a document known as a codicil. A codicil is an amendment that must be executed with the same formalities as the original will, including being witnessed. It’s essential to specify which parts of the will are being changed and how, without creating conflicts or ambiguities with the original document.
Drafting a New Will
For substantial changes, it might be more practical to draft a new will. This process involves revoking the old will and ensuring the new document clearly outlines your current wishes. It’s crucial to destroy copies of the old will to prevent confusion or legal disputes after your passing.
Amending Your Trust
A trust is a fiduciary arrangement that allows a third party, or trustee, to hold assets on behalf of a beneficiary or beneficiaries. Trust amendments are somewhat more straightforward than will amendments, primarily because trusts are usually designed to be revocable and flexible. However, the process varies depending on whether you have a revocable or irrevocable trust.
Revocable Trusts
Revocable trusts, also known as living trusts, can be amended or revoked by the settlor (the person who created the trust) at any time. To amend a revocable trust, a formal amendment document should be prepared, specifying the changes and referencing the specific sections of the original trust document being amended.
Irrevocable Trusts
Irrevocable trusts are, by design, not meant to be easily altered. Under certain circumstances and with the agreement of all beneficiaries, modifications can be made in limited circumstances. One through a process called “decanting,” which essentially involves moving the assets from the old trust into a new one with more favorable terms, as long as the modification is not inconsistent with any material purpose of the trust. Modification can also occur by adhering to a strict interpretation of Ohio Revised Code 5810.10, by entering into a “private settlement agreement.” Under a private settlement agreement, certain specified individuals may enter into a written instrument concerning the construction of, administration of, or distributions under the terms of the trust, the investment of income or principal held by the trustee, or other matters. When considering any modification of a irrevocable trust, A desire to modify or terminate an existing irrevocable trust should be evaluated on a case-by-case basis to assess the implication of such desired change and determine the appropriate judicial or non-judicial remedy under the current Ohio Trust Code.
Key Considerations and Best Practices When Amending a Will or Trust
- Legal Compliance: Ensure amendments comply with state laws and the original document’s provisions.
- Clarity: Clearly articulate changes to prevent ambiguities that could lead to disputes.
- Consistency: Avoid creating contradictions within the document or between documents.
- Professional Guidance: Consulting with an experienced estate planning attorney is invaluable in navigating the legal intricacies and ensuring your documents are valid and effective.
As your circumstances evolve, so should your estate plan. And whether you’re amending a will or trust, the process must be approached with careful consideration and adherence to legal formalities. Engaging with a seasoned attorney can provide peace of mind, knowing your wishes will be honored and your loved ones protected.
If you want to discuss estate planning with someone, contact the Probate and Estate team at Gertsburg Licata. We’re happy to help you with your questions and concerns.
Connie Powall, Esq. Partner and Probate and Estate Group Leader at Gertsburg Licata, brings over 30 years of legal expertise in estate planning, succession planning, and business interest representation. With a strong commitment to making estate planning accessible to all, Connie actively contributes to her field’s professional community and aims to foster enduring client relationships through strategic advisement on a wide range of legal matters. She can be reached at [email protected] or by phone at (216) 573-6000 x.7036.
Disclaimer: The information provided in this article is intended for general informational purposes only and should not be construed as legal advice. It does not establish an attorney-client relationship, and any reliance on the information contained herein is done at your own risk. For specific legal guidance tailored to your situation, it is recommended to consult with a qualified attorney who can provide professional advice based on your unique circumstances.
