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

Pleasanton, CA |

Under what circumstances is one better than the other.

Attorney Answers 3

Posted

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 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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1 comment

James P. Frederick

James P. Frederick

Posted

Very good summary!

Posted

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 action is to have legal representation in this matter.

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Posted

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 information provided by me is general information only. It is not legal advice. It must not be relied upon by you. Legal advice must be based on the interplay between specific exact facts and the law. This forum does not allow for the discussion of that interplay. My answer to any specific question would likely be different if that interplay were explored during an attorney-client relationship. Therefore, I provide legal advice during the course of an attorney-client relationship only. The exchange of information through this forum does not establish such a relationship. That relationship is established only by personal and direct consultation with me followed by the execution of a written attorney-client agreement signed by each of us. The communications on this website between us are not privileged or confidential and I assume no duty to you by my participation on Avvo or because I have responded to a question. All legal proceedings involve deadlines and time limiting statutes. So that you do not lose any legal rights for failure to timely take appropriate action for your situation, and because I have not provided legal advice in response to your question, you should promptly and personally consult with an attorney for legal advice. Also, see Avvo's terms and conditions of use, specifically item 9, incorporated by this reference.

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3 comments

Joseph Franklin Pippen Jr.

Joseph Franklin Pippen Jr.

Posted

I agree with Attorney Bergman's answer also but he did say that all trusts should be restated-especially if drafted by a qualified attorney and only a small change was needed.

Michael Raymond Daymude

Michael Raymond Daymude

Posted

I believe we are in agreement, Mr. Pippen. My preference for restatement in nearly all cases comes from my experience where ambiguities have been introduced by amendment, particularly multiple amendments, resulting in very expensive trust litigation.

Joseph Franklin Pippen Jr.

Joseph Franklin Pippen Jr.

Posted

OK-Thanks

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