With the release of Trust Plus® version 19, Cowles now offers the ability to generate Amendments, Restatements, and Codicils within the software.

Amendments vs. Restatements

An Amendment is a document which modifies a pre-existing revocable trust. Similar to making a codicil to a will, an Amendment modifies a pre-existing Trust without revoking the original Trust; rather, the pre-existing Trust is republished as amended by the terms of the Amendment. This is in contrast to a Restatement which replaces a pre-existing Trust in its entirety by modifying the Trust language and including the complete trust language in the Restatement document. A Restatement will typically retain the date/name of the original Trust to this avoid the need to retitle assets.

An Amendment may be appropriate to address the following types of changes:

• Changes to the trustee appointments or trustee provisions
• Changes to dispositive provisions regarding devises and residue dispositions
• Additions to administrative or other procedural provisions

A complete revocation of the prior Revocable Trust with a Restatement may be appropriate instead of utilizing an Amendment when addressing the following types of changes:

• Major drafting inconsistencies or ambiguous language throughout the document
• Major changes to the core disposition of the estate, such as the addition of tax planning techniques where the original had none
• Numerous changes to the original document, where the number of amending items would become too confusing to track/follow
• Original drafting that was completed by an unfamiliar attorney contains provisions and/or document structure that do not meet the standards of your practice, and where there is a desire to avoid tacitly approving of the existing language by simply amending a small part of the existing document

For additional discussion on the decision to draft an Amendment vs. a complete Amendment and Restatement, go to "Continue Exceptional Client Service and Follow-Up" on Cowles Members Only, and see the topic "Amendment vs. Restatement". For additional tips on drafting an Amendment, see the topic "Amendment Tips" in the same area on Members Only.

Generating the Amendment

Amendments are selected in the Supporting Documents area of Phrase/Document Selection.

Information is gathered including the date of the original trust, the date of the amendment, trustee designations, and references to prior amendments. An additional series of prompt boxes offers phrases to: (1) revoke an item without substituting it with new language; (2) revoke an item and substitute new language in its place; (3) amend an item by modifying the existing language; and (4) add an item. Each option allows up to five occurrences during the phrase selection process (so, for example, you could enter five different amending items, five different added items, etc.).

The amendment will be merged and generated with the other Supporting Documents.

Generating the Restatement

The Restatement typically begins by identifying the original trust document and any subsequent amendments to that document, the language in the original document allowing changes to the Trust, and possibly the currently serving trustee. After indicating the settlor's intent to modify the provisions of the Trust, the Restatement will then output the language of the Trust document, as modified, in its entirety.

In Trust Plus, after entering the appropriate information regarding the original Trust, the phrase selection process will mirror that of the standard Revocable Trust, since all Trust options are available for the Restatement.

There are several options in generating a restatement.

• If the original trust was created and still resides on your Trust Plus system, you may use that session to create your restatement. This will avoid re-entering appointment and other information. If you choose this option however, be aware that the original trust phrase selections will be overwritten and that information will be lost.
• If the original trust was created and still resides on your Trust Plus system, and you wish to retain the original session, a copy may be made of that session to use for the restatement. There will then be two sessions - the original session and the new session to be used for the restatement. Trust and appointment information may be adjusted if necessary for the new session.
• A new session may be created for the restatement. Trust and appointment information will need to be entered in the same way you would do so for a regular trust.

After entering trust and appointment information, the restatement is selected in the Supporting Documents area of Phrase/Document Selection. Information is gathered including the date of the original trust, the date of the restatement, and dates of any prior amendments to be referenced. The system will then take you through the Trust Plus phrases allowing you to select the appropriate phrases. Remember, if you are using an existing session, you are overwriting the existing phrase selections.

The restatement is then merged and generated with other documents that you may have selected.

Codicils

A Codicil is an amending document to a Last Will and Testament. Similar to an Amendment, which modifies a pre-existing Trust Agreement, a Codicil modifies a pre-existing Will without revoking the original Will; rather, the pre-existing Will is republished as amended by the terms of the Codicil.

There are several options available when creating a Codicil. The system offers phrases to: (1) revoke an item without substituting it with new language; (2) revoke an item and substitute new language in its place; (3) amend an item by modifying the existing language; and (4) add an item. Each option allows up to five occurrences during the phrase selection process (so, for example, you could enter five different amending items, five different added items, etc.). A Codicil may be appropriate to address the following types of changes:

• Changes to the executor or testamentary trustee appointments
• Changes to dispositive provisions regarding bequests and residue dispositions
• Additions to administrative or other procedural provisions

A complete revocation of the prior Will may be appropriate instead of utilizing an amending Codicil when addressing the following types of changes:

• Drafting inconsistencies or ambiguous language throughout the document
• Major changes to the core disposition of the estate, such as the creation of testamentary trusts or the addition of tax planning techniques where the original had none

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