Our Estate Planning Blog

Repairing a Will or Trust

Repairing a Will or Trust
Sometimes, despite best intentions and best efforts, an estate plan leaves unintended problems for heirs, trustees and others to solve. For example, a trust may have become outdated because of changes in tax laws, the birth or death of family members, or special circumstances like an heir’s disability.

What do you do when your needs turn to repairing a will or trust.  Maybe you’ve got the wrong choices for guardians or executors.  Maybe your choice of beneficiaries has changed.

When an issue arises, you need to seek the assistance of a qualified and experienced Naperville estate planning attorney, who knows to fix the problems or find the strategy moving forward.

If you only have a will, it is often easier and more efficient to simply make another will rather than using a codicil to amend the existing will.

For example, an irrevocable trust can’t be revoked. However, in some circumstances it can be modified. The trust may have been drafted to allow its trustees and beneficiaries the authority to make certain changes in specific circumstances, like a change in the tax law.  Repairing a will or trust is not always straightforward.

Those kinds of changes usually require the signatures from all trustees and beneficiaries, explains The Wilmington Business Journal’s recent article entitled “Repairing Estate Planning Mistakes: There Are Ways To Clean Up A Mess.”

Another change to an irrevocable trust may be contemplated, if the trust’s purpose may have become outdated or its administration is too expensive. An estate planning attorney can petition a judge to modify the trust in these circumstances when the trust’s purposes can’t be achieved without the requested change. Remember that trusts are complex, and you really need the advice of an experienced trust attorney.

Another option is to create the trust to allow for a “trust protector.” This is a third party who’s appointed by the trustees, the beneficiaries, or a judge. The trust protector can decide if the proposed change to the trust is warranted. However, this is only available if the original trust was written to specify the trust protector.

A term can also be added to the trust to provide “power of appointment” to trustees or beneficiaries. This makes it easier to change the trust for the benefit of current or future beneficiaries.

There’s also decanting, in which the assets of an existing trust are “poured” into a new trust with different terms. This can include extending the trust’s life, changing trustees, fixing errors or ambiguities in the original language, and changing the legal jurisdiction. State trust laws vary, and some allow much more flexibility in how trusts are structured and administered.

The most drastic option is to end the trust. The assets would be distributed to the beneficiaries, and the trust would be dissolved. Approval must be obtained from all trustees and all beneficiaries. A frequent reason for “premature termination” is that a trust’s assets have diminished in value to the extent that administering it isn’t feasible or economical.

Revocable trusts are built to allow easy and frequent amendment, so they do not present the problems that irrevocable trusts do when it comes to repairing a will or trust.

Again, be sure your estate plan is in solid shape from the start. Anticipating problems with the help of your lawyer, instead of trying to solve issues later is the best plan. The options you have for repairing a will or trust may vary depending on the type of plan you have.

Reference: Wilmington Business Journal (Jan. 3, 2020) “Repairing Estate Planning Mistakes: There Are Ways To Clean Up A Mess”

 

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