Attorney Thomas B. Burton answers the following question: "Is a Trust Amendment Valid if Signed Only by the Settlor?"
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Welcome back!
I'm Attorney Thomas Burton and today's question comes from Madison, Wisconsin and the reader asked the following:
"Beneficiary of testamentary trust established in 2004. It was amended in 2005 without successor trustee bearing witness, valid?" Then they explained, "Trustee made disbursement when I was 30 which followed the original document to the trust. Now upon turning another age, trustee is following the amended provision to the trust instead of the original like before. I was under the impression that for an amendment to a testamentary trust to be valid, the successor trustee must bear witness sign the amendment. The amendment is signed by the settler, now deceased. The amendment is signed as witness and notarized by settlor's attorney and signed as witness by the witness."
Okay, so the question is, is an amendment to, the way I understand it, to a trust valid, if it wasn't witnessed by the successor trustee and the answer is, in general, yes, the only person who needs to sign an amendment to the trust would be the settlor or the grantor, the person who created the trust.
So in your question here, you say the amendment is signed by the settlor now deceased.
So assuming the settlor signed it while they were alive which I am assuming here but if their signature was on there, if they signed it during their life and if it was a revocable, well you said it's a testamentary trust, you might ask what is a testamentary trust and to me that's a trust established by a will, in a will, so as long as you're alive you can revoke or change your will as many times as you like. So if this was inside the will, it would actually be a codicil to the will but let's say, it was a revocable trust, either way they could make the amendment during their lifetime and it would be valid and it would become unchangeable upon their death. The will is no longer changeable, a revocable trust becomes irrevocable upon the settlor's death. So all that's required for an amendment is for the settlor to sign it and the best practice is we often have someone notarize their signature to declare that was actually who signed it on that date but if it was validly signed before their death, then the amendment would be valid and that would be the actual trust upon their death.
So you can't go back to the first version they created 20 years ago and say, that's what I want to fall under. It's always the most recent amendment to the trust, is the current trust. Whatever it amended, that is now the trust we have today and that's important for others viewing this as well, to remember your trust, the date you set it up is the trust you made but at any point, if it's a revocable trust, you can change it down the road. So if you set one up in one year, five years later you can amend it and change the trustees completely or change the beneficiaries completely, you retain that power. So anyone who may be an heir or future heir in your estate, they should not think that because you set up a trust that everything is final and you, a living trust I'm saying, that you can't later remove them. You can totally do so, as long as you have capacity and as long as you're alive with a revocable trust and it sounds like the settlor made an amendment here changing the ages of the trust distributions before they died and in my experience, that would be totally valid and the successor trustee would need to follow the most recent amendment in administering the trust.
So great question, thank you for asking, thank you for tuning in and we'll see you next time.
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