Picture it. You have your estate plan drawn up and in place. You are satisfied with your choice of beneficiaries, your successor trustee, and what assets you are going to hold in your trust to begin with. However, your trust specifies that beneficiaries need to be at least age 18 before they can receive their inheritance - a common requirement since you don't want your young grandchildren to be irresponsible.

However, as time goes on, that provision gives you pause. You don't want to leave your grandchildren out entirely, but you aren't sure they will really be responsible with their inheritance, even if they are 18 when they receive it. After all, with the way things are now, they will probably still be living with mom and dad at 18 so it's not like they will have pressing bills like rent or regular groceries to worry about. Plus, if the money stays in trust longer, that just means it has a longer time horizon to grow from being invested before going out. You decide, instead of 18, you want your trust to hold the funds until age 30 but leave everything else alone. You grab a pen, scratch out 18, write 30 and initial the change before putting your trust away and never thinking about it again.

Everything is fine... Right?

The surefire way to invite a challenge as to the validity of your estate planning documents is to make changes, adjustments or even amendments to those documents by handwriting your wishes on the document itself. The judge will hate it. Your successor trustee will hate it. Your beneficiaries will hate it. The only one who will like it is the attorney representing the party challenging that change.

In a theoretical sense, as in on a law school exam, this type of handwritten change can be argued as a valid amendment to the will or trust. But again, that is going to be theoretical and a controlled environment - one where all the facts are known including the settlor's intent (the one who set up the trust and made the change). But the real world is not a law school essay question. It's messy and filled with incomplete pictures of events since we will never know every relevant fact or subjective intent.

In the real world, the situation like the one I just outlined is one where that beneficiary, who is 20 years old at your passing, will go to an attorney and could very easily mount a compelling challenge as to the validity of that change.

Consider the likely path: if your successor trustee insists on honoring that handwritten change, as they arguably have a legal duty to do, the matter is going to come before a judge, who will be the arbiter of the outcome, and as I mentioned, the judge will not likely take kindly to this type of legal battle. It’s a matter that takes time on their calendar yet comes down to trying to divine your subjective intent after your passing.

With cross-outs and scribbles, the judge won't know who made the mark, when it was made (if you didn't write the date), or whether you really intended to make that change. The judge will see a beneficiary requesting their inheritance as formally written in the document, a successor trustee (who may stand to gain by collecting their entitled yearly trustee fee until the beneficiary comes of age) who is arguing the informal change should be honored, and the lingering question that if you really intended the change, why didn't you go to a lawyer and formally update your will or trust like you did initially. For all the judge knows, absent more evidence, the successor trustee could have made the change to keep the funds under management longer. Thus, the judge could understandably find the change was not valid and order the funds distributed as formally written.

Therefore, to be safe, always speak to your attorney when you want to make changes to any provisions in your will or trust. Going through the formal procedure for updating your documents evidences your intent and provides witnesses to your intent and state of mind, in that of the attorney and their staff witnessing your wishes. Finally, a great attorney will keep records of changes in their file, and you should keep amended documents with your existing documents, so it is clear to your family you intentionally made changes overtime.

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