How should the title, introduction, and signature pages of a living trust be set up to restate the terms of the trust?

Burton asked...

How should the title, introduction, and signature pages of a living trust be set up to restate the terms of the trust? We do not wish to retain the terms of the old trust, nor do we wish to retitle our assets.

Expert Answer

Amy Shelf is an attorney specializing in estate planning and probate for individuals and families of all means.

There are at least two very important things to keep in mind when restating a trust.

For one, be sure to make very clear reference to the existing trust and establish that this new document is a restatement and continuation of the existing trust.

Second, you must have the full authority to amend all aspects of the trust; a revocable or living trust established by a couple may be amended or restated during their joint lives. But, often, after the death of the first spouse or partner, the survivor does not have the ability to restate the entire trust.

In addition, be very careful if you are restating the trust yourself. It may not be necessary to restate the entire trust, since you may want to retain many of the administrative provisions, or the “boilerplate” of the document. These sections of the trust often contain very important provisions that do not, and should not, change from one version of the trust to another. If there is a particular section of the trust that you want to change, an amendment may be sufficient.

In response to your specific questions:

  • The title should reflect the fact that the original form is being amended and restated. For example, if the trust was originally called “The John and Jane Smith Living Trust” the newly restated trust could be called “The Amended and Restated John and Jane Smith Living Trust.”
  • The introduction to the trust, sometimes called a “preamble” or “recitals” should describe the history of the trust: when it was established and by whom, and if it was ever amended prior to the full restatement. This goes to establishing that the restated trust is a new version of the original, so that assets do not need to be retitled.
  • The signing requirements for the trust vary from state to state. To meet all possible requirements, and to ensure that the restatement is valid if ever called into question, the trustors and the trustees should sign the restated trust, and the signatures should be notarized. The signatures should be identified by printing the name and title of the signor under the signature line. If the trustors and the trustees are the same individuals, it should be clear that they are signing the trust in both capacities. This can be made clear by inserting the phrase “As trustor and trustee” after the person’s name under the signature line, or having the person sign twice -- once in each capacity.