Amend My Trust, Please

Why is it that one attorney may not want to amend your trust written by another attorney? For example, someone asks me to make some changes to a trust he had written for him and his wife by an estate attorney in Oregon. They think it would be a simple matter for me to amend their trust and probably wouldn’t take more than an hour to do the work. This probably sounds reasonable to you, but there are some reasons for not doing a quick amendment under these circumstances.

  • First, if you still have access and a good relationship with the attorney who wrote the trust and they are not in a different state, your first and probably most economical choice would be to work with that attorney.
  • Although there is much in common with trust law throughout the states, there are important differences and often only an estate planner who has experience in writing trusts in the state where you currently live.  For example, Oregon is not a community property state and California is. This affects how a trust would be written for a married couple in these states.
  • Lawyers are be more aware of potential litigation than most laymen and know that their work products may be challenged in court by disappointed potential heirs. There are significant differences in how we write revocable living trusts, the most common trust instrument. Typically, we will not amend a trust written by someone else because the wording of another lawyer’s work does not represent our best understanding of how the documents should be written. This provides us with the best chances of explaining why we did what we did if challenged in court. It would be quite uncomfortable and perhaps unsuccessful for us to defend someone else’s work.
  • The most common outcome of this set of circumstances is that we would usually amend and restate someone’s trust rather than just amend it.
  • Cost is also a factor here even though it might not seem economical to completely rewrite a trust to change your beneficiaries and change some provisions that you consider minor. For me to determine whether or not the provisions and wording of your original trust might do what was intended may require several hours of legal research before I would be confident, while if I am using the provisions I have already concluded are appropriate would not involve extra research.
  • Because they are so common and attorneys get good at producing them relatively quickly, living trusts for individuals without complex situations and needs are very competitively priced.
  • A living trust is the work product of estate planning. Estate planning is a professional service that includes a reasonable amount of time explaining one’s choices and then creating the legal documents that will reflect your wishes.Estate planning is an important professional service, and if not thorough and careful can cause things to happen for you and your heirs that were not your intentions. You might sleep well thinking that you have finished all of your estate planning and can rest assured, but your intentions are important enough for me to do what is necessary to diminish the possibility of your wishes being obstructed after your life.

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