How to Amend a Living Trust

If you have a living trust you are already a step ahead of most people. However, as you have probably learned by now, the trust creation is merely the beginning. Your entire estate plan, including your living trust, needs to be updated at nearly every major life event, including marriage, divorce and the birth of children and grandchildren.

Difficulty: Moderate

Instructions

Things You'll Need:

• Original trust document
• List of trust property
• Deeds of conveyance

Amending a Living Trust

1. Decide what changes you want to make, and why. Knowing why you want to make the changes will help you decide how to effectively make that change.

2. Review your original trust document to see how you can amend it. Some trust documents describe in detail how to amend the trust, while others are silent on the question. If your trust describes the process, you will simply need to follow that process. But, if your trust is silent, you will need to continue with the steps described below.

3. Draft an Amendment to Trust. If your trust is a revocable trust, only you need to sign the Amendment to Trust. The Amendment to Trust should describe the changes you want to make.

4. If your trust is an irrevocable trust, then the trust must expressly grant you the power to amend the trust. If the trust does not grant you that power, you will need the consent of the trustee and all of the beneficiaries to make an amendment. Assuming the trustee and beneficiaries consent to the change, you should have them sign the Amendment to Trust that you drafted in step three.

5. Transfer new property to the trust. If you made a change to your trust that added property to the trust, then you need to draft a deed of conveyance to transfer that property to the trust. Some property, like a family heirloom, is not represented by a document of title and therefore does not need a deed of conveyance. Instead, this property merely needs to be listed on the Trust Schedule that lists the trust property.

6. Record the deed of conveyance at the county recorder's office if you are adding real property to your trust. In most states a conveyance of real estate is not effective until you record the deed of conveyance.

Tips & Warnings

• If you are adding new property to your trust then you should draft the deed of conveyance at the same time as the Amendment to Trust. Even if you list the property on the trust as part of the trust, your property will not actually become part of the trust unless you draft the deed of conveyance. Remember to record with the county recorder if you are conveying real property to your trust.
• Think and write carefully when you draft your Amendment to Trust. The only thing that matters is what you write on paper. If you don't write it, it won't happen. If you write it but didn't actually mean it, you will be stuck with it. Think twice and write once, then edit many times until the language is perfect for carrying out your intent.

References

• Nolo's Make Your Own Living Trust (9th Ed); Attorney Denis Clifford; 2009

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