One of the nice aspects of a Living Trust is that is can be amended, i.e. changes can be made as long as the settlor is alive and competent. After establishing a Trust, a settlor may decide to make some amendments and it is not uncommon for the attorney doing the work to prepare what is sometimes called a “Restated Trust”.
A Trust which is “restated” essentially goes by the name of the original Trust but substitutes an entirely new set of provisions into the Trust. As a result, one of the common provisions which estate planning attorneys use at the beginning of a restated Trust is as follows: “All terms of the original Trust instrument and any prior amendments or restatements thereto are hereby restated, amended, reconstituted and replaced in their entirety by the terms of this instrument, the terms of which shall in all respects be substituted into the original Trust”.
There are a couple of benefits to doing a restated Trust. One of the main benefits is that you are amending the Trust but once executed, you have only one Trust instrument rather than an original Trust instrument and then an amendment (or in some cases, a string of amendments). This lessens the chance of an amendment being lost and thereby not being implemented.
Another benefit of the restated Trust is that is keeps the same name for the Trust. That way, amendments and modifications can be made to the terms of the Trust but the settlor does not have to go back and re-title any assets already in the name of the Trust. So if a settlor establishes the “John Jones Living Trust Dated March 1, 2008” and later amends and restates the Trust on December 21, 2013, the Trust will still be called the “John Jones Living Trust Dated March 1, 2008” even though all of the new amended provisions are those implemented on December 21, 2013. Any assets already named in the Trust before the restatement are fine as titled and do not have to be re-named.
