Last updated on October 31st, 2018
Amending Estate Plans
The thought of amending estate plans that you’ve worked hard to create may be unsettling, but it is often necessary. Your estate plans should be updated and reviewed annually to ensure you are still satisfied with the potential outcome.
Divorce, a new marriage, the birth or death of a child – these are all factors that affect your implemented estate plans. However, you don’t always have to start from scratch. Here are some ways to amend your estate plans without starting over.
(Note: It is beneficial to meet with your lawyer before enacting any changes to avoid conflicting estate documents.)
Amending a Virginia Will
A “codicil” is the act of revoking part of your will, or adding a new provision to your existing will. The codicil is the formal way to amend your will.
Adding a codicil to your will can act to do a number of things, such as revoke the inheritance of a previous beneficiary. You are also able to establish a new beneficiary for inheritance. However, you should not attempt to make substantial changes to your will documents through a codicil.
Additionally, you cannot gift property that you may no longer own at the time of your death. An “ademption” happens when you bequeath property you no longer own, and as a result, some of your beneficiaries are left without an inheritance. To avoid this, you may name an alternate gift in the event that you no longer own the initial gift.
Once your codicil is written, signed, and dated, keep it along with your original documents for reference.
Tangible personal property memorandum (TPPM)
The American Bar Association defines a “tangible personal property memorandum” as a document addressing the tangible estate property and who receives it.
Your handwritten TPPM is incorporated into your will once it is referenced in your will document. If referenced, the TPPM is legally viewed as an addition to your existing will.
You can revise and revoke your TPPM by attaching a new TPPM to your will that revokes the first. You must revoke, sign, and date each page of the original TPPM in order to avoid conflict with your new memorandum.
The TPPM allows you to leave certain pieces of your estate to particular beneficiaries. The property disbursed through your TPPM is distributed to the named beneficiary outside of your will’s beneficiaries, who inherit the remainder of your estate.
The changes you intend to make determine which course of action you will take. If your changes are minimal, technical, or revisional, a simple codicil or TPPM will suffice for those changes.
However, accounting for a divorce, a new child, or remarriage is a major change that takes more time, thought, and effort. In these cases, it can be more beneficial to rewrite your will than to merely edit your will.
To revoke your existing will, state that your new will revokes the old will. Sign and date your revocation in your newly established will.
Remember, leaving an outdated will means that the court may abide by your outdated wishes, regardless of changes in your life.
Amending a Virginia Trust
As long as your trust is revocable, you are able to make changes at any time. An irrevocable trust cannot be changed under any circumstances.
You are able to make “amendments” to your revocable trust at any time during your lifetime. This can be changes to trust property, beneficiaries, or designations. You are able to amend, revoke, or terminate your trust at any time, for any reason.
An amendment to your trust explains the changes of your beneficiaries – adding or removing – and is enacted once you sign and date it into effect. Be sure you attach your amendments to your original trust documents in order to reflect your changes.
The titles of your trust property are owned by the trust. Property you add to the trust does not require a separate amendment, but you are responsible for changing the title ownership over to the trust. Failing to change the title ownership of property you intend to include in your trust results in that property being reverted back to your original estate.
An amendment is recommended when you are contributing new property that you intend to be inherited by a particular beneficiary (when there are multiple trust beneficiaries).
Amendments to your trust are recommended for changing the specifics of your trust. While you are able to revoke your trust, it is much more tedious. You must revoke your trust in writing, change your property title ownership, establish a new trust, revert your property title ownership once more, and reiterate your beneficiaries.
Therefore, it often makes much more sense to amend your trust rather than to revoke it entirely.
There are many life events that should prompt you to review and update your estate documents. Some include:
- Spousal death
- Death of a beneficiary
- Incapacity of a beneficiary
- Birth of a child
- Death of a child
- Birth of a grandchild
- Death of a grandchild
- Educational needs of your beneficiaries
- Moving to another state or country
- Major asset acquirement (i.e. winning the lottery)
- Medical needs
These are only a few of the major life events that call for your estate plan to be updated. Whenever there is a change or circumstance that affects your future and the future of your children, it is wise to consult your attorney to ensure that your estate is well-planned.
Many of the “milestone” moments of your life affect your estate plans. Amending your plan to account for your new future is essential. Schedule a consultation with our estate planning attorney to establish or update your estate plans.