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Wednesday
Jun122013

Amending Your Revocable Trust

One of the most advantageous characteristics of a revocable trust is its flexibility.  The Grantor, or creator, of the trust has the authority to amend the trust at any time.  So if the law changes or circumstances in your life change, or you simply change your mind, you can change any provisions of the trust.  This includes revoking the trust in its entirety if you wish.

If the trust is a joint revocable trust created by a husband and wife, and one of the spouses dies, the survivor can usually continue to amend the trust -- unless there is a specific provision in the trust prohibiting it.

When amending the trust, your attorney will prepare an amendment which only affects the part of the trust you wish to change.  The entire document does not need to be redone.  That being said, in some cases, after a number of amendments, you may wish to restate the trust to make it less cumbersome and easier to comprehend.  In this case, the new restated document is still the same trust for the purpose of titling assets.  You will not need to retitle your assets into a new trust name.

Many people make the mistake of crossing out a provision of their trust, writing in the changes and initialling the change.  This will not effectively amend the trust and may even invalidate all or a part of the trust.  Florida law requires that a trust document and any amendments to it be executed by the Grantor(s) in the presence of two witnesses who must also execute the document.  Marking up the existing trust and initialling it does not comply with this requirement.

It is also important to know that only the Grantor can amend the trust.  If the Grantor has died or is incompetent, the trust may not be amended.  Also, an attorney-in-fact under the Grantor's durable power of attorney cannot amend the trust on behalf of the Grantor.  This is to ensure that the Grantor's wishes be carried out and not unilaterally be changed by some other person.

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