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Please don’t write on your estate planning documents

by Robert J. Green, Esq.
| June 15, 2022 4:31 PM

Wills and trusts are typically changed over time as life circumstances, the state where you reside, or your desired outcomes change. It is actually the rare case where a person puts their estate plan together once and never changes it after that. What is important to understand however, is how to effectively and legally change your will or trust so that the changes are enforced per your wishes.

All too often I review will and trust documents upon which people have hand-written edits and changes to the original language in an effort to amend something. This is a very bad idea. I also often see handwritten addenda added to the front or back of a will or trust document that has been written and attached sometime after the signing of the original document. Also a bad idea. These approaches are very problematic because they are almost never done in a way that meets Idaho requirements for a legally valid amendment to a will or trust.

A legally enforceable change to a will is accomplished in one of two ways – by replacing the prior will document with an entirely new will document (and explicitly stating in the new document that all prior wills are revoked and replaced), or by adding a new document (called a codicil) to the old will document. A codicil must make clear exactly what part of the old document is being changed and will typically reaffirm the unchanged other terms of the old will document.

A legally enforceable change to a trust is similarly accomplished in one of two ways. The first way is by replacing the prior trust document with an entirely new trust document, although the name and creation date of the trust will remain the same and this is explicitly not a revocation of the trust. This is called a trust restatement. The second way to change a trust is by what is called a trust amendment – which is similar to a codicil of a will. A trust amendment is a new document that is added to the existing trust document and states which part or parts of the original trust document are being changed.

The laws of every state, and certainly of Idaho, have specific technical requirements for a will codicil or a trust amendment/restatement that must be followed in order that the changes contained within them will be legally effective. Simply writing on the existing pages of a will or trust will almost never meet these requirements, but certainly can lead to major post-death disputes among family members and other interested parties.

As I have covered here before, handwritten wills (called holographic wills) are legal in Idaho, but they also have very specific requirements, and also are not eligible for informal probate – the easier form of probate under Idaho law. It is certainly possible that a person could have a legally valid will or trust with an ineffective handwritten amendment. Just because the original document meets the requirements of the law does not mean that the amendment automatically does so as well. Like many things in the legal world, there are a lot of ways to mess this up, and just a few ways to do it right.

The good news is that a competent estate planning attorney can assist you with any modifications – big or small – that you may need to make to your estate planning documents. If you need to modify your documents, do not hesitate to speak to a qualified estate planning attorney.

My law firm is currently offering free in-person, telephonic, or electronic consultations concerning creating or reviewing estate planning documents.

Robert J. Green is an Elder Law, Trust, Estate, Probate, & Guardianship Attorney and the owner of Kootenai Law Group, PLLC in Coeur d’Alene. If you have questions about estate planning, probates, wills, trusts, powers of attorney, guardianships, Medicaid planning, or VA Benefit planning, contact Robert at 208-765-6555, Robert@KootenaiLaw.com, or visit www.KootenaiLaw.com.

This has been presented as general information and not as legal advice. Do not engage in legal decision-making without the advice of a competent attorney after discussion of your specific circumstances.

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