Under California law, when you create a living trust you also have the power to update the trust during your lifetime. We recommend you review your living trust every three to five years for changes. This gives you the opportunity to look at your trust with fresh eyes and make changes to your trust as needed. It is important to review your trust if there are significant changes in your personal circumstances, such as a death, a divorce, the birth of a child or grand-child, or if there have been significant changes in your personal finances.
The next step is to determine the process to update your trust. Most living trusts contain a provision that states the trust may be amended in writing, and then signed and notarized by you. You can “amend” your trust, which means just changing one or two provisions of your trust, while keeping the original trust (like a codicil to a last will). Or you can “restate” your trust, which means republishing your trust anew, allowing you to destroy the original trust, but still maintain your original trust name and trust date. Many of our clients prefer to restate their trust as opposed to just an amendment, as the restatement is cleaner and simpler in the long run.
There are issues that could affect the validity of any trust updates. If there is family disharmony, someone could challenge the amendment or restatement on the grounds that one of the trust signers was not competent, or that the amendment or restatement did not strictly comply with the terms of the trust. This is why it is so important to work with an experienced estate planning/living trust attorney when updating your trust do ensure that all updates are valid and enforceable when it comes time to administer your trust.
Every trust should include a Schedule of Assets, which may also need updating to include new assets you have acquired, modify existing assets that have changed (such as a bank account transferred to a new financial institution) or to delete assets you have sold or that simply no longer exist. Updating your Schedule of Assets should be part of any modifications you make to your trust.
Speak to an Estate Planning Attorney About Updating Your Living Trust
If you have significant changes in your personal or financial situation, we recommend you meet with an experienced estate planning/living trust attorney to review your trust. If changes to your trust are needed, then an amendment or a restatement can be prepared for you. For help with preparing your trust amendment or restatement, please contact the Law Offices of Eric A. Rudolph, P.C. We have over 12 years of experience helping individuals and couples just like you with updating their living trusts.
