Amendment Policies, Pricing, Procedures & Forms
A Foreword About Amendments
Insure Your Amendment Is Necessary and Done Correctly:
A great advantage of your revocable living trust is that you have the right to amend it (change it) at any time. In doing so it is important that you make sure you do it correctly and unambiguously. In that regards we would like to make you aware of the following:
Never Write On Your Trust Originals:
Please be aware that a note in the margin of your document, or writing on your document, or striking out words does not constitute a valid amendment and doing so could trigger huge problems, ambiguities, and potential litigation. NEVER write on your trust originals (or even the provided copy as it is better for the original and copy to stay consistent). If however, you would like to make a copy of certain pages out of your trust and then make notes on the copy for discussion purposes, that’s fine.
Amendments Are Usually Only Necessary When You Wish To Change The Terms of The Trust (i.e. trustees &/or beneficiaries)
Generally, an amendment is only necessary when you wish to change the terms of your trust. For most clients this is typically confined to a desire to change successor trustees and/or change the distribution of assets at death (who gets what, when). Sometimes it involves changing the structure of a Married Trust (click here to learn Why Most Married Couples No Longer Need or Want An AB Trust).
Amendments Are NOT Usually Required For Additions or Dispositions of Assets Unless….
Though you should always make sure all assets (including new assets) are properly titled in the trust (see Titling Assets in Your Trust) simply adding or disposing of assets in the name of your trust does not generally require an amendment unless you wish to specifically gift that new asset to a certain person. However, if there is a specifically earmarked gift covered in the terms of your trust which you sell or dispose of, then you should amend your trust to deal with the fact that such asset no longer exists. Failure to address this can cause many problems, ambiguities, inequities and discrepancies after death and illustrates some of the many problems associated with trying to equitably divide and distribute an estate through specific gifting.
A Warning About Self-Prepared Amendments:
In theory we have nothing against self-prepared amendments; it is just that almost all of the self-prepared amendments we have seen are never done correctly. This makes it highly likely that a change you attempt to make on your own can cause significant problems, ambiguities, and questions. So rather than carrying out your intentions, a self-prepared amendment often results in completely thwarting and defeating your intentions. That is why we advise you to always seek competent legal counsel to draft and prepare your amendment and address your goals. Also, due to liability issues we either have to prepare the amendment or have nothing to do with it at all. We will not involve ourselves in the approval, review, or legal sufficiency of any amendment prepared independent of this office despite any document or copy you may send to us.
Remember – Many Times It Is Smarter To Conduct A Complete Review:
At some point it is probably wiser, more practical and a better use of your money to conduct a complete update and review of your living trust. This is especially advisable if your trust is more than 5 years old and/or you still have an AB trust and/or there have been fundamental changes in your life or holdings or the law that could impact your estate plan. This approach allows you to incorporate all of your desired changes while attaining the added benefit of a full review and update of all related documents (see Why a Review).
About Our Amendment Pricing: To many, an amendment may often seem like nothing more than a “simple” change. Yet anyone who works in a law office can tell you that, in reality, the process from initiation to completion is much more involved and time consuming than most realize. While we do our best to keep our fees as reasonable as possible our charges must still reflect the amount of time and work involved — which is why we only publish typical pricing (which only applies to amendments prepared following our normal procedures and timelines – and to trusts that were established or fully restated through our office). We also reserve the right to modify our fees at any time.
Typical pricing is as follows:
- $300 to Amend Nomination of Successor Trustees & Executors
- $400 minimum to Amend Gift, Inheritance & Beneficiary Provisions
- $450 minimum to do Both of the Above
Notary Fees Also Apply: Please note that when you sign and notarize any documents at our office there is also a charge of $5 per notarized signature.
Higher Charges Apply For Amendments That Are Lengthy, Complex, or Involve Excluding Children:
While many (if not most) amendments can be completed for the minimums quoted above if a proposed amendment is judged (in our complete discretion) to be overly lengthy, complex, or involves excluding or largely excluding children then higher rates will apply.
One Purpose of Completing and Submitting Our Amendment Request Form Is To Help Us Complete Your Amendment For As Reasonable A Price As Possible:
Though we are able to do most amendments for our minimum charges (listed above) we cannot begin to know for certain without a significant understanding of the nature and extent of the requested amendment. In essence, first requiring completion and submission of this packet prevents us from having to charge everyone higher prices.
If You Insist On Bypassing Our Normal Process Then We Must Charge A Minimum Charge of $800
Bypassing our normal process means we must set aside significant time to allow for complexities. This entails devoting at least a half-hour before your appointment to pull and review the file and setting aside a one-hour time slot to meet in which time we will make every effort to complete your amendment within this one-hour time frame (in which case the minimum $800 charge applies). Whether or not that happens is largely dependent upon how efficiently you use our time and the complexity of the amendment. If however, matters necessitate exceeding one-hour, then an additional $150 per 15-minute increment will apply (and it also may require another appointment). Be smart submit your application first; it will likely save you significant money!
Amendment Reminders & Policies
Remember: We Can Only Take Directions From the Client
Submitting An Amendment Request Does NOT Mean We Agree To Complete The Amendment:
A mere request for amendment does not mean we agree to complete the amendment or otherwise represent you in this process. (We will of course return your check or payment if we do not agree to proceed). If you do not have some evidence, in writing, that we have agreed to represent you in the matter, then this office has not yet necessarily agreed to prepare the amendment or represent you in the matter. Until you hear from us otherwise you should assume we have not agreed to complete your amendment or have somehow not received your request (there can be delivery failures).
If Our Response or Turnaround Time Does Not Meet Your Requirements You Should Immediately Seek Other Legal Counsel
Also, we cannot always respond to amendment requests or complete the amendment in the time frame desired by the client. Though we strive to provide quality service and often complete amendments very quickly, circumstances do not always permit a quick turnaround or response, which is why our stated policy is to allow up to 30 days for the amendment. If our response time is not satisfactory to you, you are hereby instructed to immediately seek competent legal representation outside our office that can assist you in the matter, which is more suited to your time frame and needs.
An Amendment Request Has No Legal Standing As An Amendment:
An amendment request has no legal standing as an amendment, which is a document that generally must be formerly drafted, signed, and notarized in order to have legal standing.
Amendments Should Be Notarized
In order to notarize any document you generally must be able to furnish one of the following picture ID’s that is current (non-expired).
- State Drivers License
- State DMV ID
- Military ID (limited)
Suggested Approaches & Thoughts
We Offer Information, Experienced Observations and Suggestions – But Not Mandates:
Lawyers, clients, and others differ in their opinions about some of the matters we discuss here. That’s okay. There is no right or wrong in these regards, there is only a philosophy about it. So don’t consider what we set forth here as absolutes you must adhere to or agree with; they are simply our general conclusions, observations and philosophies from over 25 years experience at this. We well know someone’s unique circumstances are sometimes perfectly valid reasons from departing from these generalities. So take them for what they are; suggestions. In the end it is your choice and you should always do what best suits your situation.
Shy Away From Trying To Divide An Estate With A Specific Gifting Scheme Because What Seems Fair Now May Not Turn Out To Be So Fair Later
While there are always appropriate exceptions from this rule, we generally discourage attempts to equitably divide your estate with specific gifts (i.e. this house to Tom, that house to Mary, these accounts to Mark, $200,000 to Gail etc.). While such a division may look fair right now, assets and your asset base tend to change (sometimes drastically) over time. A house gets sold; cash gets used or assets shift into different assets; liquidity turns into illiquidity; etc. Often, under such typical circumstances what seemed balanced before potentially turns in to a completely different result.
Huge Problems and Inequities Are Often The Result
The idea that anyone will regularly amend a trust to keep up with a shifting asset base simply is not based in the real world where most put off establishing an estate plan for years and many never even get to it at all. That is reflected by the fact that our courts are clogged with these issues, laws abound that try to address it, and countless families are thrown into turmoil and disputes. Fact is, trying to equitably divide an estate through specific gifting regularly causes innumerable problems, ambiguities, inequities and discrepancies after death – making this something to keep in mind in your own estate planning.
Percentages or Equal Divisions Maintain Equity Regardless Of Any Shift In Assets
Rather than trying to divide your estate with specific gifts consider stating things in terms of an equal division among a group (divide my estate equally among Tom, Mary, & John) – or in terms of percentages (10% to Tom, 40% to Mary, 50% to John whereas the total equals 100% when you add them together). This tends to maintain the same equity regardless of changes to assets or net worth.
Minor Gifting Is Still Appropriate
This discussion isn’t meant to discourage certain five, ten or even twenty thousand dollar or other minor gifting (relative to overall net worth) to selected beneficiaries like grandchildren or friends or charity etc. It is just meant to discourage trying to divide all or most of an estate in such a manner.
If You Do Decide To Divide Your Estate With Specific Gifts Keep In Mind The Likely Need For Regular Amendments
Of course you do not have to take our suggestions but be forewarned if there is a specifically earmarked gift covered in the terms of your trust which you sell or dispose of, or if your asset base or net worth shifts, or there are insufficient funds assets or liquid funds, then you will need to constantly amend your trust to deal with these shifting realities. Otherwise your estate, trustees and beneficiaries may well face these many problems, ambiguities, inequities and discrepancies after death. (Since few actually keep up with amending the trust this problematic outcome will be the likely reality.)
Stick As Closely To The K.I.S.S. Principle As You Can
In our experience, the closest thing to a perfect estate plan is one whose inheritance provisions are simple and straightforward, and whose objectives allow the trust to be wound up and dissolved in short order. Most clients implement a Living Trust with the overall goal of making the distribution of their estate as inexpensive, speedy, and uncomplicated as possible. That is exactly what happens when you structure your plan around the KISS principle — (Keep It Simple Stupid — a principle which many an engineer can attest to the value of.) Another way to put it is that “complexity invites chaos”. To make it more complex is to invite some of the very things you were trying to avoid.
Resist The Temptation to Rule from the Grave:
Most of you have worked very hard for your assets and gained much wisdom and insight just as a result of living. This often gives rise to a natural temptation and inclination to “rule from the grave”. That is, some ask for trusts and other provisions which keep the assets tied up with restrictions for years – and thus to try to manage, direct, and control the use and consumption of assets, and to whatever degree, people’s lives and destinies – long after their dear departed souls have left this world. In some cases there is a genuine need and good reasoning for this but many times it is simply about trying to continue “ruling from the grave”. Lawyers, clients, and others differ in their opinions about this. There is no right or wrong in these regards, there is only a philosophy about it. We find attempts to manage and control things past death often causes more problems than they will solve. Further, you will eventually lose control no matter what you do – and any amount of time you are able to exercise it, usually a generation at best, will not even amount to a blink in the cosmic sense of things. These are just some of the reasons that we espouse a philosophy of resisting the temptation to rule from the grave.
Problems With Complicated and Overreaching Provisions
Oftentimes, when clients engage on a course of complicated directives and divisions that they see as wise, they unknowingly invite unforeseen consequences. You can never devise something that covers all angles. Any so-called “protective strategies” are always complex and act as a two-edged sword. While the clients are wholly focused on their narrow objective, they are blind to the unforeseen consequences of such complication. Again, lawyers, clients, and others differ in their opinions about this. There is no right or wrong in these regards, there is only a philosophy about it. What we find however is that often, what many believe will accomplish their objectives doesn’t, and it further leaves behind a messy and less than desirable legacy. For instance, excluding a child (or discriminating in other ways) may not harm an already unsalvageable relationship with the parents, but the possible resentment it may cause among the siblings may prove a hindrance or kill the prospect of good relationship between them. Requiring a house to be sold at your death may look like a great idea now but when the time arrives, it may come in the midst of the worst real estate depression in 50 years.