Three Important Steps for Amending Your Trust When Your Spouse Passes

For any married couple, the loss of a spouse is a traumatic and deeply painful event. Unfortunately, soon after the loss of someone whom you cared about so much, you are also often called upon to carry out the important task of administering his or her estate. It is important not to overlook your own estate plan as well. Updating your trust after your spouse passes away is as important as it was to create the trust to begin with.

Once you are ready to make the important choice of updating your estate plan after the loss of your spouse, your next steps should be as follows:

  • Carefully review the terms of the trust with your estate planning attorney. Depending on the type of trust that was in place, you may be able to amend all or part of it after the loss of your spouse. In other cases, the entire trust may now be irrevocable, leaving you with little recourse for making changes. This may be the situation if you had a joint trust with your spouse that contains a provision stating that it cannot be amended unless by both of you together, before either of you has passed.
  • Consider amending your trust. Assuming your trust can be amended in whole or in part, you may want to have your attorney draft a straightforward trust amendment. This document changes only the terms of the original trust that you no longer wish to include. Alternatively, you can prepare an amendment and complete restatement that changes all of the provisions of the prior trust at the same time.
  • Consider terminating the old trust and executing a new one. In some cases, it may seem too cumbersome to amend an old trust, and it may be more appealing to prepare a new trust after your spouse passes away. Trusts that have many amendments can become confusing and susceptible to attack by individuals claiming that the trust should be invalid.

Choosing the strategy for modifying your trust is important, as changes to an estate plan can have significant tax implications. Fortunately, there is no need for you to make these decisions alone. We encourage you to reach out today for valuable guidance from our experienced legal team. 

 

James F. Roberts
Founder and owner of the Law Office of James F. Roberts and Associates, a premiere estate planning law firm