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?
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.
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 estate planning attorney Robert P. Bergman, with offices in San Jose, California. Mr. Bergman is a Certified Specialist in Estate Planning, Trust and Probate Law (State Bar of California Board of Legal Specialization), and has been practicing since 1980. This answer does not create an attorney-client relationship, and is only intended to provide general legal advice within the limits of the question asked. If you wish to create an attorney-client relationship for specific legal advice, it will be necessary to enter into an engagement for legal services. More general legal information about wills, living trusts, and estate planning can be found at Mr. Bergman's main website at www.lawbob.com, or his information website at www.lawbob.net. Mr. Bergman also offers free living trust seminars and wealth preservation seminars at his offices in San Jose. For those unable to attend a live seminar, an online living trust seminar may be viewed or downloaded at www.freelivingtrustseminar.com.
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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.
Estate Planning Attorney
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.
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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.
*** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state.