When I was a kid, I really wanted a remote-controlled hovercraft.
I thought it looks awesome. I mean, just the idea of a flying remote-controlled car was amazing. So I saved up my money and bought one. Can you guess what happened next?
If you said, “I used it a few times and then never touched it again,” then you would be correct. The thing took like 37 hours to charge and you could only use it for two minutes until you had to charge it again.
I was really upset about it at the time. I kept thinking, “If only I could exchange this toy for another!” Unfortunately for me, Toys “R” Us hates children and refused to give me my money back. And that’s why I became a lawyer. For justice.
Here’s the good news: there is no Toy “R” Us return policy for your estate planning documents. You can update them, change, exchange, or revoke them entirely as long as you are alive and competent (with a few exceptions).
When should I amend my Will or Trust?
Some attorneys may try to convince you that your Will or Trust needs to be amended whenever you go through any significant life change. Buy a new house? Amend your Trust. Have a grandchild? Amend your Will. Finish binge watching Friends? Amend, amend, amend.
However, there is no particular occasion or event upon which you need to update or amend your documents. Rather, you should review their estate plan regularly and consider what, if any, life changes affect your wishes as stated in those documents.
Is there a new child or grandchild in the picture that you want to provide for? If so, you may wish to amend your Will or Trust to provide a specific distribution to him or her.
Do you have substantially more assets that you did before? If so, you may decide to amend your documents to leave funds to charity or to try and minimize estate taxes.
Has one of your beneficiaries recently made poor financial decisions? If so, you may want to change the way their share of your estate is distributed to them, or impose conditions they must meet before inheriting your estate.
It may also be advisable to amend your Will or Trust if there are any significant changes to applicable laws, especially when it comes to tax laws.
There can be many reasons to amend a Will or Trust, and a qualified estate planning attorney can help you figure out whether an amendment is advisable in your situation.
How do I amend my Will or Trust?
In Oklahoma, an amendment to a Will or Trust must be executed using the same procedures and rules as used when executing the original document. This only makes sense, as you are essentially replacing part of that original document.
Keep in mind, however, that an amendment to a Will — also known as a “codicil” — or a Trust, if not done carefully, may unintentionally result in a complete cancellation or revocation of your original document. For a Will, this could mean that part or all of your estate ends up going to someone you don’t want to have it. For a Trust, this could mean your estate has to go through probate.
It is crucial that estate planning documents are properly executed. You can spend a lot of time and money on a document that has all the right legal language. But if it not executed in compliance with the laws of your state, the entire document (or in the case of an amendment, that amendment) could be set aside.
For that reason, as with all things estate planning, you should consult with an estate planning attorney if you wish to make any changes to your estate plan — even if you created the original estate plan yourself. (Though we strongly recommend that you do NOT create your own estate plan.) An attorney can put the amendment in the proper form and ensure it is properly executed in compliance with state laws.
Are there any documents I can’t amend?
Most estate planning documents are revocable, meaning you can amend or revoke (cancel) them at any time as long as you are mentally competent.
Some documents, however, are expressly irrevocable, meaning they cannot be amended. Once the document is created, it is set in stone.
Take, for example, an irrevocable trust. Irrevocable trusts can be used for many purposes, including asset protection from Medicaid (sometimes called a “special needs trust” or “supplemental needs trust”), charitable giving, managing spendthrift beneficiaries, minimizing estate taxes, and more. However, the main catch is that once established, these documents generally cannot be changed without court approval.
There may also be limitations (if not outright prohibitions) on your ability to amend other types of estate planning documents. If you establish a joint trust with a spouse, for instance, both of you would generally need to agree in order to amend the document. One of you could not amend it by yourself.
Attempting to amend an irrevocable document (or a document you can not amend by yourself) could have negative consequences for everyone involved. On one end of the spectrum, the amendment might simply be declared invalid and ineffective; on the other end, the amendment might be seen as an attempt to defraud an individual or entity. You should therefore take great care and consult with an attorney before making any changes to your estate planning documents.
Update your estate planning documents today.
It is important to have a good estate plan, and equally important to keep that plan up to date. As time goes by, we all change. Our families change, our assets change, and our wishes and desires change. You should therefore regularly review your estate plan to see if any of those changes should be reflected in your estate planning documents.
To explore your options for amending a Will or Trust, or to create those documents in the first place, contact the experienced Oklahoma City estate planning attorneys at Postic & Bates for a free, no-obligation consultation appointment.
David M. Postic is an associate attorney at Postic & Bates, P.C. His practice includes estate planning, probate, real estate, adoption, business law, and litigation.
You can email David through our Contact Us page or by calling our office at (405) 691-5080.
[As with all our posts, the contents of this article do not constitute legal advice and are subject to our site-wide disclaimer.]