Codicils and Trust Amendments

Clients often ask us to update their estate planning documents by preparing codicils or trust amendments. The idea of a codicil, particularly, is rooted in centuries of experience. If all you want to do is to make a minor change, wouldn’t it be easier to sign a codicil than a whole new will?

The same thinking can apply to a trust amendment. Wouldn’t it be easier (and, probably, less expensive) to just prepare a 2-3 page document amending only the provisions that need to be updated?

The truth is that few lawyers prepare codicils in the modern age. Why not? Because it’s so easy to just sign a new will. And it’s better for the client, too. Why? Because the client only has to keep track of one document, and can shred or destroy the old, superseded will.

We’re surprised how often our clients manage to separate their estate planning documents. Was there a trust amendment? Everyone seems to remember one, but it’s not in the binder with the trust document itself. Where should we look for it? And what did it say?

Our practice with regard to codicils and trust amendments? We haven’t prepared a will codicil in decades. And we prefer to create a whole new trust rather than a second amendment. If the first amendment truly does just change one provision, and it looks like that’s going to be the only amendment for a few years, we might agree to amend the trust. Once.

One important principle: we usually prefer to “restate” the trust, rather than simply amend it (or, heaven forfend, create a whole new trust). Why? That allows the account title and real estate deed to stay the same. It’s still the O’Brien Family Trust Dated March 17, 1997, even though it was restated in 2010 and again in 2023.