How to change your will or trust

As life unfurls, from time to time, you may want or need to change your estate planning.

You may want to change one or all of these legal documents that together build a Massachusetts estate plan, usually consisting of a:

Usually, you will not alter all of these documents at one time. It's more likely it will be one or two of the legal documents.

But if something has happened to a person you've named in all these documents, then you may need to change all the documents.

All of these documents are amendable. These are not unchangeable documents.

MA Will and making a change

The way you change a document depends on the type of document involved. Each will have its amendment method.

A will is the most formal of these documents. The law has required for centuries in Massachusetts and elsewhere that two or three witnesses also sign your will. And each time you change your will, you have the same requirement of signing it along with two of non-related witnesses.

Many times you will also have a notary public the will under the signatures of the witnesses. While helpful when you want to probate the will after death, the notary signature is not absolutely necessary in Massachusetts.

Without a notary signing, you will not have a self-proving will. This means that an affidavit from one of the witnesses may need to be presented to the MA probate court when probating the will.

But if all your heirs (nearest relatives) and the will's beneficiaries consent to the Probate Court accepting the will as valid (aka probate), then the will not containing a notary is far less important.

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Massachusetts revocable trust: How to amend it

A revocable trust is not subject to the same rules that apply when you amend a Massachusetts Last Will and Testament.

This less formal approach is possible because the Massachusetts law on wills does not apply to trusts.

So, amending a trust is not subject to the more technical requirements that the MA law of probate insists on.

Many times the trust will include a clause that tells you how to amend this legal document.

It is common for an amendment provision to require that it be in writing, signed by the person who made the trust (Trustor, Trust Maker, Donor are terms for this person).

And many times, the trust requires any trust amendment to be delivered to each current trustee of the trust.

In our Lexington, Massachusetts law office, we encourage every current trustee to sign a trust amendment as a form of acceptance of the altered terms.

The terms of the particular trust will determine if every trustee must sign an amendment.

If you recorded a Massachusetts real estate deed in the registry of deeds, then any trust that was recorded at that same time should be amended in the same registry.

This recording in the MA registry of deeds is to avoid having a future title problem. This problem occurs when a person examining the land registry records cannot determine enough information about the trust from the documents that are recorded in the registry of deeds.

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Health Care Proxy changes

Usually, when you want to change a MA health care proxy, you create a new one. The document is short, just a few pages.

You may want to create a new MA health care proxy if one of the persons you've listed in the document cannot take on that role because they have died, or moved far away, or for another reason.

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Durable Power of Attorney changes

You can generally amend a MA durable power of attorney. It's a rare case in which you cannot change it, and that is typically in a business situation.

Yet, instead of amending a Massachusetts power of attorney, you would more likely create a new one. Creating a new one is a more convenient and cost-effective approach.

Also, older durable powers of attorney may not be accepted by a financial institution after several years, maybe 5-6.

The financial institution may deem the older durable power of attorney to be too old or 'stale.' Each institution may have a legal policy.

So you may encounter difficulty in predicting how your financial institution may judge an older power of attorney. In short, if you cannot think straight or manage your signature, would your bank or other institutions accept another person's signature on your behalf?

Our office suggests a new durable power of attorney every few years to counter the risk that an older durable power of attorney will not be accepted when you need it to be.

Some states require witnesses and a notary on a durable power of attorney. MA law does not require either. But adding these signatures cannot be detrimental and may be useful under some conditions.

If you need to use the durable power of attorney outside of Massachusetts, having it signed like the ones in that other place may be useful.

And, if the durable power of attorney needs to be recorded in the registry of deeds, the registry will insist it contains a notary public at the document's end.

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