Free Living Trust Amendment

It is advisable to delete and then add or restate an ENTIRE provision/paragraph of the trust rather than attempting to delete, add or change only a portion of the provision/paragraph. By restating the entire provision, there is less chance of misinterpretation.

The Living Trust Amendment is a document used to change one or more minor provisions of a living trust or joint living trust as an alternative to preparing a new living trust. The amendment can be used to make minor deletions and/or additions to the original trust.

Multiple amendments should be avoided, especially if one amendment amends a prior amendment. Instead, a single amendment should be prepared which restates and revokes all prior amendments. Furthermore, if major and/or numerous changes will be made to the original trust, it is recommended that the original trust be "amended and restated" in its entirety. (See the Living Trust or Joint Living Trust documents and select the option to "Amend" the Trust.) If the trust is merely restated instead of revoked/replaced, the assets already transferred to the trust will remain there.

1. The Living Trust Amendment should be signed by both the Grantor(s) and the Trustee(s). For states other than Florida, it is recommended (and may be required if real property is included among the trust assets) that these signatures be notarized; however, unlike a will, no witnesses are necessary. In Florida, a Living Trust Amendment must be signed with the same formalities required for the signing of a will (see provisions 5 - 10 below).

2. Fill in the date in the signature area at the end.

3. You should initial the bottom margin of each page of the document. This prevents the subsequent substitution of pages.

4. The original of the Trust Amendment should be attached to the original copy of the Trust. A photocopy must be given to the named Trustee if he or she is not the Grantor as well as to anyone who has a copy of the original trust document.

   FLORIDA ONLY (5 - 10):

5. This Living Trust Amendment is not valid unless it is signed by the Grantor(s) who is/are of "sound mind" and of the minimum age for this state. In most states, the minimum age is eighteen. Some states permit an individual below the minimum age to sign a Living Trust Amendment if the person is married or in the military. Being of "sound mind" requires that the Grantor: (a) know that he or she is signing a Living Trust Amendment, (b) know the general nature and extent of his or her property, and (c) know the descendants or other relatives that would ordinarily be expected to share in the estate.

6. If the Grantor is unable to sign due to physical disability, another person may be able to sign on behalf of the Grantor, in the Grantor's presence, and at the express direction of the Grantor. If there are any questions regarding the possibility of someone signing on behalf of the Grantor, a lawyer should be contacted.

7. The Living Trust Amendment should be signed by the Grantor(s) in the presence of three DISINTERESTED adult witnesses and a notary public. Many states require only two witnesses, but the signature of a third witness provides some protection against the possibility that one of the witness' signature will be invalid for some reason. For example, a person should not be a witness if that person is a beneficiary under the Living Trust. In most states, if a beneficiary's signature is counted in order to satisfy the minimum number of witnesses, then the Living Trust Amendment is not necessarily invalid, but that "interested witness" may not receive a share of the estate any larger than if the Grantor(s) had died without a trust or a will.

8. All of the witnesses must watch the Grantor(s) sign this Living Trust Amendment. The Grantor(s) should verbally declare that the document is intended to be his or her Living Trust Amendment, but the witnesses need not read the Living Trust Amendment or know of its contents.

9. Each witness must sign his or her name with the Grantor(s) and the other witnesses present. The witnesses should be satisfied that the Grantor(s) willingly signed the document as a free and voluntary act, and that the Grantor(s) was/were of full age and sound mind.

10. The Florida Self-Proving Clause is a document which should be attached to the end of the Living Trust Amendment, and which contains the Grantor's acknowledgment and the affidavit of the witnesses, made before a person authorized to take acknowledgments and administer oaths. The affidavit recites that the requisite formalities were observed in signing the Living Trust Amendment. Although attaching the affidavit has nothing to do with the legality of the Living Trust itself, it can speed the admission of the Living Trust to probate (if necessary) after the death of the Grantor because it eliminates the need to have a witness appear at the probate proceeding to testify that the formalities in signing the Living Trust Amendment were followed. The witnesses may not be available later when they are needed. A self-proved Living Trust may be admitted to probate without additional witnesses or affidavits, but it is still subject to contest on such grounds as undue influence, lack of testamentary capacity, or prior revocation.