What is the difference between a amending a trust and restating a trust.

Asked about 2 years ago - Pleasanton, CA

Under what circumstances is one better than the other.

Attorney answers (3)

  1. Robert Paul Bergman

    Contributor Level 13


    Lawyers agree

    Answered . The difference is more one of degree. An amendment to a trust usually involves making one or more changes to specific provisions of the trust, which may include adding additional language or distribution provisions.

    A restatement involves both amending the original trust document and replacing it with an entire new trust document.

    If a trust was originally created several years ago and changes are to be made, a restatement is usually advised. The restated trust can both incorporate the changes and include new provisions that reflect changes in the tax laws and/or trust laws, as well as potentially provide much better planning overall for the inheritance to be passed on to children or other heirs. If a trust was created more recently by a qualified estate planning attorney, then minor changes might be handled well by a simple amendment.

    You should be aware that most estate planning attorneys will not amend a trust document that was prepared by the client using self-help options such as legalzoom, etc., or even one created by another attorney. This is because there may be more time and expense involved in going completely through such a trust to make sure that it is complete and appropriate for the client then it would take to replace the existing trust with a new, restated trust. An attorney who simply amends an existing trust is, in effect, adopting the existing trust as his or her own work, and could be held legally liable if there are problems with the existing trust language.

    Feel free to visit my website for more information. I have a lot of articles and free information, including a living trust seminar that can be viewed online or downloaded. These can answer a lot of questions for you.

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

    Contributor Level 20


    Lawyers agree

    Answered . I agree with Mr. Bergman. I think amendments to trusts and codicils to wills are more in keeping with times past when it was more efficient to modify provisions by amendment or codicil. That is no longer true and I believe the better practice is to have the instrument completely re-drafted.

    I am licensed in California only and my answers and information on Avvo assume California law. Answers and... more
  3. Joseph Franklin Pippen Jr.


    Contributor Level 20


    Lawyers agree

    Answered . Amending is just changing part of the Trust-the most common changes are changing the trutees or distribution.
    Restating means you are creating a new trust but using the existing date so you do not have to register
    the assets or fund the trust with a new daate. This is common when a person has lost the document, moves from state to state, has major changes, or the estate tax changes change the planning concept.

    The answer given does not imply that an attorney-client relationship has been established and your best course of... more

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