The quick answer to that question is to get an attorney involved. It is important to do the amendment correctly so that your wishes are honored when the trust is administered. Here are things to consider:
- The amendment must strictly comply with the process required by the terms of the trust. A recent California appellate court decision (Diaz v. Zuniga, B318131, May 19, 2023) found that a document prepared by the settlor and executed by the settlor of the trust was not a valid amendment. The reason why it was not a valid amendment is because the settlor did not send the amendment to themself as trustee by certified mail. The terms of the trust require that any amendment be “delivered” to the trustee by certified mail even when the settlor and the trustee are the same person. In this case, the settlor executed the amendment and put the document in a box in his house. The court reasoned that the settlor made that certified mail requirement part of the trust and anything that did not comply with that requirement would thwart the settlor’s original intent when the trust was created.
- The changes made to the trust are formatted correctly so that it is clear what changes are being made. I have had to petition the court on multiple occasions to get instructions on how to interpret how the amendments amend the terms of the trust. This comes up when incorrect sections or articles are referenced, or no articles or sections are referenced. It can also happen when provisions are mistakenly removed and it can impact other distribution provisions.
- The changes could impact other provisions of the trust that also need to be amended. This is where reviewing the entire document is important to make sure that any changes are tracked correctly throughout the document.
- A restatement of the trust in its entirety may be more appropriate. If the trust is an older trust or there have been several amendments that have to be all read together, it may be time to restate the trust. Other reasons why a restatement can be important is if individuals are being disinherited or there are changes to their inheritance and those prior provisions are not something you want the individual to see, then a restatement would prevent them from being entitled to see the prior provisions.
Everyone wants their wishes to be honored and carried out when it comes to their estate plan. This is why it is important to correctly amend your trust so there are no issues with interpreting those wishes when you are no longer around. And correctly amending your trust can keep the probate court of your business!