The situation is common. A client has a will or trust prepared by legal counsel. Sometime later the client wishes to make changes to the estate plan. The question is, how should those changes be made?
First, one should never hand write or type changes to the face of an existing will or trust. The cost of paying for a properly drafted and executed change to an existing estate plan document is far less than the amount that the beneficiaries and estate administrator would pay to separate legal counsel to determine the effect of the handwritten change.
Any estate planning attorney could share experiences of negative effects on families caused by handwritten changes to estate planning documents.
Although no one wants to create problems between beneficiaries of the estate, even small handwritten changes can create great problems. The question is always what should govern – the handwritten change or the original provision? The question is almost never clear and can almost always be argued either way.
Additionally, there is almost always a question as to whose handwriting it really is. The legal formalities that exist with respect to executing estate planning documents and changes to those documents were developed to prevent the first person that finds the will or trust from changing the terms by penning or typing changes of their own to the document. The necessary formalities are not satisfied when handwritten or typed changes are made to the document.
It is important to note that in almost all situations, one can, with proper assistance, effectively change an estate plan. Although some estate tax savings trusts (life insurance trusts, credit shelter trusts, etc.) are not amendable, most estate planning trusts are revocable, amendable trusts. Additionally, wills are almost always revocable and amendable.
In conclusion, almost all estate planning instruments are amendable. Although the documents can be changed, it is almost never a good idea to change the documents by handwriting or typing the changes on the face of the document. Handwriting or typing on the face of the document will almost certainly lead to questions about the effect or validity of such changes. Such uncertainty will likely result in disputes between beneficiaries. These disputes can be both financially and emotionally draining.
WITH A SATELLITE OFFICE IN PANGUITCH. Jeffery J. McKenna is a local attorney serving clients in Utah, Nevada, and Arizona. He is a shareholder at the law firm of Barney McKenna and Olmstead. He is a founding member and former President of the Southern Utah Estate Planning Council. If you have questions regarding this article or if you have a topic you wish to have addressed in this column, you can call 435 628-1711.