What are the steps for replacing a prior living trust, without resorting to amendments , while keeping the original date?

Asked almost 2 years ago - Monterey Park, CA

Assume that the declaration of a revocable living trust (AB trust) was drawn up a few years ago (notarized) and is in need of structural revisions which are too messy to handle via amendments. Therefore it is desirable to replace and reissue the trust declaration in its entirety while keeping the original date of issue. Assume that there are no trustee and beneficiary changes, i.e., there are no substantive changes to the main provisions of the trust, however there are changes to the boiler plate.
How should the revision be handled?
What specific language needs to be introduced?
What needs to be done to keep the original date of the trust declaration?
What should the signature page look like (boiler plate)?
What are the advantages to keeping the original date of issue?
Thank you

Attorney answers (5)

  1. Robert Paul Bergman

    Contributor Level 13

    9

    Lawyers agree

    Answered . First of all, this would be handled as a restatement of the original trust agreement, preserving the original name and date so that any assets already titled or transferred to trust ownership do not need to be re-titled or transferred.

    Substantive questions like the language to be put into a restatement, including possible upgrading of the type of trust that is prepared, etc., cannot possibly be handled through a question place on this site. You need to consult with a competent estate planning attorney in your area.

    Please remember to mark what you believe to be the best answer to your question. This answer is provided by... more
  2. Robin Mashal

    Contributor Level 19

    4

    Lawyers agree

    Answered . Disclaimer: The materials provided below are informational and should not be relied upon as legal advice.

    As my colleague properly points out, you can prepare and execute an 'amended and restated' Living Trust. If you are not familiar with this area of law, I suggest you retain an estate planning attorney to help you.

  3. David Michael Frisse

    Contributor Level 5

    3

    Lawyers agree

    1

    Best Answer
    chosen by asker

    Answered . Its not as complicated as it seems. Simply RESTATE the entire Trust, making it a a complete "replacement" document. For example, I've restated my trust a number of times. The Title of the document is the ORIGINAL NAME TRUST as Restated on [date]. The introductory text reads:
    "On August 17, 2001, I, DAVID CLIENT, executed the DAVID CLIENT LIVING TRUST, dated August 17, 2001. I now wish to restate that original trust, and any amendments, in their entirety. This restatement, dated July _________, 2012, shall replace and supersede my original trust and all prior amendments."
    We almost NEVER do amendments because its too easy for them to get separated from the original -- resulting in chaos later as to what the "final" (as of death or disability) terms of the trust are.. Restatements are a complete "swap" of everything after the cover page.
    This also has the benefit of avoiding any need to change titles of assets held by the Trust. If you change the NAME OF THE TRUST (incorporating the original signing date), then you have to retitle assets every time there is a change in the instrument. Its hard enough to get clients funded one time, much less having to do it regularly.

  4. Eric Jerome Gold

    Pro

    Contributor Level 19

    3

    Lawyers agree

    Answered . As already suggested, you need a restatement of the trust. As for th appropriate boilerplate language and other items, you should consult with an estate planner for assistance.

    When responding to questions posted on Avvo, I provide a general purpose response based on California law as I am... more
  5. James P. Frederick

    Contributor Level 20

    Answered . I agree with my colleagues. I would only add that, with regard to your question about the advantage of keeping the original date, this would apply in connection with any assets that you have funded the trust with. If you have an asset that is titled in the original trust and that trust no longer exists, then it is unclear where that leaves the asset. It may fall to your "estate" which would require probate proceedings that otherwise would have been avoided. If you do not have any assets titled in the original trust, (or naming the original trust as beneficiary), then it makes little difference.

    James Frederick

    *** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and... more

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