One of the most common changes clients make to an existing estate plan is changing the person they have selected to serve in an important role.
Maybe the person you originally named as your trustee is no longer the right choice. Perhaps your personal representative has moved away. Your children may now be adults and capable of serving. Relationships change. Family circumstances change. People age, become unavailable, or simply are no longer the people you want making important decisions for you.
From the client’s perspective, the request can sound very simple:
“Everything else stays the same. I just want to change the name.”
We understand why it feels that way.
But when a law firm changes a fiduciary designation in an estate plan, the attorney generally cannot—and should not—simply open a document, replace one name with another, and hit print.
First, What Is a Fiduciary?
An estate plan can name several people to positions of significant authority and responsibility. Depending upon your plan, those positions may include:
- Trustee or Successor Trustee — the person who manages your trust if you become unable to do so and who administers it after your death;
- Personal Representative — the person nominated in your Will to administer your probate estate;
- Agent under a Power of Attorney — the person authorized to handle financial or legal matters for you;
- Health Care Agent — the person authorized to make certain medical decisions when applicable; and
- Guardian or Conservator nominations — individuals you nominate to care for minor children or serve in other important capacities.
These positions may appear in different documents, and the same person is often named in several of them.
That is one reason a seemingly small change can require a broader review.
Why Can’t We Just Change the Name?
Because an estate plan is a collection of interconnected legal documents—not a Word document with a typo that needs correcting.
When a client asks us to change a fiduciary, our first job is to determine where that individual appears throughout the estate plan and what legal authority has been given to that person.
For example, suppose a client says:
“I want to remove Susan as my trustee and replace her with Michael.”
The attorney needs to determine whether Susan is named only as successor trustee—or whether she is also named as personal representative, financial agent, health care agent, guardian, conservator, or in another capacity.
We also need to determine whether Michael should replace Susan everywhere or only in the particular role the client intends to change.
Those distinctions matter.
The Work Starts Before We Draft Anything
Before modifying an estate plan, the law firm generally needs to retrieve and review the client’s existing documents.
Trust. We identify the current trustee provisions, successor trustees, order of succession, resignation and removal provisions, and related administrative provisions.
Will. We determine whether the same person is nominated as Personal Representative or in another fiduciary capacity.
Durable Power of Attorney. We review the existing agents and successor agents.
Health Care Documents. We determine whether the individual being changed also appears in medical decision-making documents.
Other Estate-Planning Documents. Depending upon the plan, additional documents may contain related appointments or references that need to remain consistent.
The attorney then has to understand exactly what the client wants changed—and, equally importantly, what the client does not want changed.
Then We Determine the Correct Legal Document
Changing a fiduciary does not necessarily mean rewriting an entire estate plan.
Depending upon the document and the scope of the requested changes, the appropriate solution might be an amendment, a trust restatement, a new Will, a new Power of Attorney, a new health care directive, or another document.
That is a legal determination.
The goal is not simply to make the documents look correct. The goal is to make sure the change is legally effective and integrates properly with the rest of the estate plan.
Drafting Is Only One Part of the Process
Once the appropriate method has been determined, the law firm prepares the necessary documents.
The attorney or paralegal then needs to review the revised documents carefully.
That means checking more than the new person’s name.
We may need to verify the order of succession, defined terms, cross-references, pronouns, related appointments, signature provisions, notary provisions, and other provisions affected by the change.
We also need to make sure the revision did not inadvertently alter something the client did not ask us to change.
In legal drafting, sometimes the most important part of the job is making sure everything that is supposed to remain unchanged actually remains unchanged.
Execution Matters Too
Estate-planning documents have legal execution requirements.
Depending upon the document, proper execution may involve signatures, witnesses, notarization, or other formalities.
A Will, for example, is not simply an ordinary document that can be edited, printed, signed casually, and placed back in the binder. The execution requirements matter because the validity of that document may someday be evaluated when the person who signed it is no longer here to explain what they intended.
The law firm therefore needs to prepare the execution copies, coordinate the signing, supervise the applicable formalities, and make sure the completed documents are properly assembled.
After the Signing, There Is Still Work to Do
The process often does not end when the client signs.
The firm may need to scan the completed documents, update its records, organize the originals, update the client’s estate-planning binder or electronic file, provide copies, and make sure superseded documents are appropriately identified.
Depending upon what changed, the attorney may also need to discuss whether copies of prior documents should be retrieved or whether particular people or institutions should receive notice of a change.
That administrative work is part of maintaining a reliable estate plan.
Why Law Firms Take These Changes Seriously
Estate-planning documents are unusual because the consequences of a drafting mistake may not become apparent for years—or even decades.
And when the document is finally needed, the client may be incapacitated or deceased.
“What did you mean here?”
There may be no opportunity to ask that question.
That is why careful estate-planning attorneys do not treat even seemingly minor amendments as simple clerical edits.
When we put our name on an estate-planning document, we are taking responsibility for the legal work involved in preparing it.
“But It’s Only One Name.”
Sometimes it really is a relatively straightforward change.
But straightforward does not mean that no professional work is required.
Even a limited fiduciary change can involve reviewing the existing estate plan, confirming the client’s instructions, identifying every affected document, determining the proper method of amendment, drafting the change, reviewing the revised documents, preparing execution copies, coordinating legally proper execution, and maintaining the client’s updated file.
The amount of work will vary depending upon the client’s documents and the requested change. But the process exists for a reason.
The objective is not merely to change a name on a page.
The objective is to make sure that when your estate plan is eventually needed, the right person has the right authority under legally effective documents.
Your Estate Plan Should Change When Your Life Changes
The people you trusted ten or fifteen years ago may not be the people you would select today. That does not necessarily mean there was anything wrong with your original estate plan. It means life changed.
If you review your documents and realize that you would no longer choose the trustee, personal representative, agent, guardian, or other fiduciary currently named in your plan, that is a good reason to have your documents reviewed.
Making the change correctly now is far easier than leaving your family to deal with an outdated estate plan later.
