Sometimes it comes up that you want to change a small part of your estate plan, but it isn’t really worth the large attorney fee required to get the work done. Some people are tempted to do without. Others are tempted to take up the pen and make the amendment themselves. Which is better? Which is legal?

When it comes to legal, if your attorney is allowed to make the edit, you are allowed to make the edit. (In fact, it is you making the edit even when you get your attorney to draft it.)

There are some things that are against the law to enforce in an estate plan. (For example, you cannot deny a trustee her right to fairly compensate herself for her services as trustee or you cannot deny the government their right to taxes.) However, outside of those things, most things are legal in an estate plan.

If we are talking about a Last Will, you are always allowed to amend or revoke your will simply by doing so. If we are talking about a Trust document, you have to check first if anyone – you or the attorney – is allowed to amend it. If you can amend it, your trust is called revocable. If you cannot, it is called irrevocable. Signs that you can amend the document is language like, “While I am alive, I may at any time or times amend any provision of my Trust Agreement or revoke my Trust in whole or in part.”

Just because you can amend your estate plan, doesn’t necessarily mean you should though. If you are making major amendments to how your trust works, you may want to take the document to an attorney or at least read our article “Can I Write My Own Estate Plan?” which covers many of the concerns that major amendments would bring up.

However if you are just trying to change which charity you are leaving money to or what percentage a beneficiary inherits, your attorney’s knowledge of estate law does not add as much value. You know your wishes better than they do.

Once you have decided to make the change yourself, it is important to give the change as much legal weight as you can muster. The standard in estate planning is to have two witnesses and a notary who are not mentioned in the document witness your signing and attest in writing to you being of sound mind and not coerced. If you are making handwritten changes in the margins, you should write what all the amendments are together on one amendment sheet (here is a sample of trust amendment that might help) and sign that sheet before the witnesses and notary.

After signing this amendment, if you have anyone else storing a copy of your estate plan (such as your financial planner or lawyer), provide them with an electronic copy. You want to make sure that your executor or successor trustee knows that you have made this amendment.

If you go without the notary or the witnesses, your changes may be charged with an expensive “irregular signature” lawsuit. This is where someone challenges that your handwritten changes are indeed your own handwriting or that your signature at the bottom of a typed page is indeed your signature. If you are making changes which change how much someone inherits, it increases the financial incentive for someone to sue. Alas, these lawsuits rip families apart.

Notary’s normally cost $10 and come with the free option of having two witnesses. Included in our service to our clients, we have multiple notaries public on staff available to help our clients. I recommend that you at a minimum use a notary to record your amendments.

Keeping your estate plan current with your wishes is the most important part of your estate plan. Your documents can be a beauty of estate planning and still be the wrong documents for you. You deserve documents that accomplish your goals.

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