Amending a Will v. Amending a Trust

Will docProcedures for making changes to your Minnesota Will differ from making changes to your Revocable Trust.

Even the terms describing amendments to these documents are different. An amendment to your Will is called a “Codicil” whereas an amendment to your Revocable Trust is called an “Amendment”.

When the desired revisions are multiple in number and significant, it may make sense to take more dramatic steps. With a Will, you may want to create a new one. A new Will supersedes the old Will if your new Will specifically states that you are revoking any prior Wills and Codicils.

If you want to replace your Revocable Trust, you’ll likely undertake a “restatement” of your existing Trust. Every provision in your restated Revocable Trust can differ from your original Revocable Trust so that it reads like a new Revocable Trust. However, the reason that you “restate” it in its entirety rather than create a new Revocable Trust is so that you don’t need to retitle all of the assets that you’d already placed in your existing Revocable Trust. All of the assets that you had earlier placed in your existing Revocable Trust were titled something similar to “The Jane Smith [i.e. your name] Revocable Trust, dated ________________.   The date is the date that your original Revocable Trust was created.

Your restated Revocable Trust is identified as “The Jane Smith Revocable Trust, dated _________, as restated”.  Because the reference is to the Revocable Trust of the original date, you don’t not need to retitle your assets yet again to have them covered by your restated Revocable Trust document.

By the way, if you acquire additional assets after you create your Revocable Trust, you typically do not need to amend your Revocable Trust document to account for each additional asset that you wish to have covered by your Revocable Trust. Your Revocable Trust should contain language that you may add (or remove) assets from your Revocable Trust.

Typically you would name yourself as the initial trustee of your Revocable Trust. Doing so allows for seamless additions and subtractions to the assets in your Revocable Trust during your lifetime.

Note that your Will and your Trust require certain formal procedures to be effective.  A Codicil must use the same formal procedures as are required to create a valid Will in Minnesota, such as signatures by witnesses, a notary, and what’s known as a self-proved affidavit. Similarly, an Amendment to a Revocable Trust must use the same formal procedures as are required with a Revocable Trust. There are fewer formalities for a Revocable Trust than for a Will in Minnesota.

With either document, it’s not a good idea to take a pen and start crossing out the parts that you no longer desire so that you can handwrite in new provisions! Why? The handwritten changes do not use the required formalities and therefore won’t be effective changes.

When you desire to change your estate plan, a prudent step would be to seek the assistance of an estate planning lawyer licensed in the state where you live.

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Disclaimer: This Blog is for informational purposes only and is not to be construed as legal advice. If you have questions, please seek the advice of an attorney licensed to practice law in the state where you live. Wittenburg Law does not expressly or implicitly warrant the accuracy or reliability of any of the Blog’s contents. An attorney-client relationship is not formed by reading this Blog. If you are interested in Wittenburg Law’s representation of you, you must contact Wittenburg Law for a determination of whether your matter is one for which Wittenburg Law is willing and able to accept representation of you.

Bonnie Wittenburg, Wittenburg Law Office, PLLC, 601 Carlson Parkway, Suite 1050, Minnetonka, MN 55305         952-649-9771     bonnie@bwittenburglaw.com   www.bwittenburglaw.com