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Trust Amendments vs. Restatements

You have made a very wise decision when you protected your family from Probate by investing in a Living Trust. However, your Living Trust is not a once in a lifetime, “do it now and forget about it” experience. Changes in your personal circumstances may require “updating” your trust in order to avoid unnecessary and inconvenient burdens and expenses for your family. If it has been a couple of years since you last taken a look at your living trust, ask yourself the following questions:

Senior citizen estate planning in California

  • Is your Trust over 5-7 years old?
  • Has there been a change in your family? Birth, death, divorce, or marriage?
  • Do you have a Married Couple’s Trust and your spouse has passed away?
  • Do you wish to change the names and/or order of your trustees or agents?
  • Do you wish to change the disposition of your estate?
  • Did you purchase or refinance Real Estate since your trust was established?
  • Are you in need of long-term care and seek Medi-Cal options?

Why It’s Important to Have Trusts Reviewed & Serviced

Any Trust created before the 2010 New Estate and Gift Tax Legislation MAY NEED a review, amendment and/or restatement to take advantage of the flexibility of the new law called “Portability”. On December 17, 2010 Congress passed the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 (HR 4853). This legislation dramatically changed the laws that would have come into effect on January 1, 2011 on Federal Estate and Gift Tax. These taxes are imposed to tax the transfer of wealth from one generation to the next. Many people wish to avoid this type of transfer tax.

As of December 2010, both the Estate Tax and the Gift Tax Exemptions increased, however, they became tied together so that every individual may transfer the exempt amount during their life or at death. The new law also provides for “portability.” Portability allows a surviving spouse to preserve a deceased spouse’s unused estate tax exemption by filing a federal estate tax return. This preservation ensures that the couple may ultimately transfer a combined $10M before paying any transfer/estate tax. In a household with modest assets that created a trust prior to 2010 should have it reviewed to look for this very outdated provision which can be inflexible and have harsh requirements for the surviving spouse.

Amendments vs. Restatements

Depending on the complexity of what revisions need to be made to your Trust, an attorney would either recommend a Trust Amendment or a Trust Restatement. A Trust Amendment is recommended to those whose Trusts who need a small change made. For example, if the Trustee you had selected has now moved away or if you’d like to change the disposition of your beneficiaries. A Trust Restatement is recommended when the entire Trust is outdated, simply because of how long ago it was created or because the entire content of the Trust needs to be updated. An attorney Trust review can determine whether your Trusts needs an amendment or a restatement.

asian mother and daughters estate planningSurvivor’s Restatements
When the First Spouse Passes

When one spouse dies, a surviving spouse suffers greatly from grief, sadness, feeling of loss and emptiness. However, there are no immediate difficulties in day-to-day life when it comes to dealing with banks, mortgage companies, maintaining houses and paying bills. Generally, the husband and wife are both on the bank account, as joint account holders or co-trustees. The surviving spouse is able to sign the check, deposit or withdraw the funds to do whatever they wish to do. So, it will appear that nothing needs to be done…. right?

NOT so if you want to maintain the effectiveness of your trust. If you have created a trust when the estate taxes were at a 55% for any amount over a small exemption amount such as $600,000 all during the 1990s. Your trust will most likely have A-B or A-B-C provision requiring (a wording of “shall”) a division of assets to survivor trust (A), tax credit/by-pass trust (B) and/or disclaimer/marital deduction trust (C) in order to minimize the eventual estate tax upon the death of the surviving spouse. These types of trust are very inflexible to manage for the surviving spouse of a modest estate with assets not exceeding $5 million today.

In order for the trust to be legally effective, the surviving spouse MUST appraise the assets, identify and allocate assets belonging to the deceased spouse into the tax credit/by-pass trust, and file an Estate Tax return (IRS Form 706). This trust is irrevocable and the surviving spouse cannot change the terms and conditions of the trust. If the required A-B or A-B-C provisions are not executed, the entire trust is deemed irrevocable rendering the surviving spouse to live with the old, ineffective and inflexible terms created when the estate tax laws were much different than today.

How to Start Your Estate Planning

It’s called peace of mind…and you can have it. So, when is the best time to start estate planning? Right now! When you are ready to start thinking about inheritances and protecting your assets for the future, the first step is to contact an expert estate planning attorney.  Elder Law Services has taken pride in helping families since 1995.  Our experienced legal team will walk you through every step of the process.

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Gaby gave me necessary and important information. She was charming and very experienced in the field of Elder Law. I highly recommend this firm and want to share the reassurance I received.
Response from the owner: Melissa, thank you so much for the positive review. We look forward to being of service to you again, anytime you need us.
Response from the owner: Thank you for your rating Lisette. Please let us know if and when we might be of further assistance to you.- Robin Montano
I spoke to Robin and Isabel and they have outstanding customer service skills genuinely kind friendly and knowledgeable as to the needs I had ! i recommend elder law services of california 100% for accurate helpful resolutions to real estate and protection of assets for your elderly loved ones
Response from the owner: Momma Joyce, Thank you so much for the positive review, it means a lot to us. Our team works hard to help valuable clients like you and appreciates your generous acknowledgement. It's our sincere pleasure to serve you. Best,Robin M.
My family greatly appreciated the law service that Judd, Sergio and Robin provided my brother and his estate before his passing. They traveled to the hospital, explained everything accurately, expedited the process due to his health and secured my brother's estate. The trust that was generated is securing his whole estate just as he willed. This couldn't have been done any better.
Response from the owner: David, Thank you so much for the positive comment. Our team works hard to help our clients with their legal, Medi-Cal, and Estate Planning needs and always appreciates honest feedback. We're pleased that you are pleased. Best regards to you and yours, Judd, Sergio, Robin and all at Elder Law Services of California
Think of every superlative you know. Got 'em?Now you know my experience with Elder Law Services of California!A lady there, Ms. Montano, is a gem! She opened my eyes to how aLaw Firm can be of enormous help if you contact one like this one!
Response from the owner: George,Thank you so much for the positive comments, you made my day. Our team works hard to help our clients with their legal, Medi-Cal, and estate planning needs and always appreciates honest feedback. We're pleased that you are pleased. Best to you, Robin M.
We went for a living trust and we had very professional service.If you decided to do one, this are the place to do it, thanks 👍
Response from the owner: Thank you Mr. Molina. Just let us know if we can be of additional service.
Friendly staff, when the time comes for me to finalize my affairs, I would recommend this law office
Response from the owner: Thank you for the review Jesse. Just let us know if there's anything we can do for you.
Friendly and professional office
Very helpful ! They really guide you . I am very satisfied and recommend then!!
Very pleased with the assistance my parents received with the drafting of their revocable Living Trust, from Attorney Judd Matsunaga. Will definitely refer to family, friends, and associates.
Top notch! They have done services for my husband and I. Also my mother. My sister will also be using their services.They are caring. Professional. Are quick to answer questions whether by phone or email. The pricing is spot on and they go above and beyond the norm. I love the many locations.They are great communicators and are able to help us past some of the legal jargon. They are also a "teaching" institute. Judd Matsunaga writes articles coaching his readers. AND they conduct many seminars - free of charge!I can't say enough positive things about Elder Law Services of California and I'm one to not write positive feedback unless my statements are true.A++++ all the way! 5 star and more........

Elder Law Services was very personable and professional! We recommend them to anyone who is in need of Elder Law representation.

Nancy, from Los Angeles CA

Business Owner

“Our family is so thankful for the services provided by Elder Law Services of California. They are completely professional, honest, and courteous throughout my mother’s Medi-Cal application from the beginning to the end. They were with us all the way. We can’t thank you enough.”
Ricardo, from Los Angeles CA

Business Owner

Elder Law Services was extremely informative, detailed, and professional in the completion of our Trust.



“Thank you very much for all your hard work. The best law firm I have ever worked with. They are very thorough with all the documents. Very good job on our complicated case!”
Keith and Ralene, from Hollywood, CA

Family Business Owner, Business Owner

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