Dad Has a Trust From the 90s. Here Are Three Things Worth Checking.

Jun 14

Most families treat a trust as a document you set up once and file away. For a while, that works fine. But when a trust has been sitting untouched for decades, a few things tend to slip out of date, and the gaps are not always obvious until someone needs the document to actually work.

If your parents are like many millennials' parents, they may have set up that trust back in the 1990s, when you were young and they were first thinking about who would raise you and manage things. But the real issue is not the exact year. It is the time that has passed. Whether a trust was written in the '90s or more recently, a long gap is reason enough for a fresh read.

None of this means the plan is broken. An older trust is still a real act of planning. It just deserves a fresh read. Here is what tends to need attention in a trust that has been sitting for a decade or more.

A quick note on scope: this article is about revocable living trusts, the type most families use for personal estate planning and the kind a parent can typically update while they are alive and have capacity. Other trust types, such as irrevocable trusts, generally work differently and may not be as easy to change, so it is worth confirming what kind of trust you are looking at before assuming anything can be revised.

This is for general educational purposes only and does not constitute legal advice. Estate planning laws vary by state. Mitzi is not a law firm. Please consult a licensed attorney for guidance specific to your situation.

The backup person

Every trust names a trustee, typically the person who created it, and a successor trustee, the person who steps in to manage things when the original trustee is no longer able to. In an older trust, that successor is often a spouse, sibling, close friend, or an attorney who was practicing at the time.

A lot can change over the years. The person named may have passed away, moved, lost touch, or simply no longer be the right fit for the role. If the successor trustee is unavailable when the time comes, the trust may stall right when the family needs it to work.

It is worth pulling the document out and confirming who is named, and whether that person is still willing, available, and reachable. If the answer to any of those is no, updating the successor is generally one of the more straightforward changes an estate planning attorney can help with.

Anything digital

Older trusts, especially those drafted before online life really took off, usually say nothing about email accounts, digital photos, online banking, or accounts that live entirely in the cloud.

Without language covering digital assets, a family may have limited legal authority to reach what lives online after someone passes. Adding a digital assets provision is worth looking into, and in most cases it is a targeted update rather than a full rewrite.

The tax language

Tax laws have changed significantly over the years, and they continue to change. Some older trusts include formulas that were designed around the rules at the time and can produce different results under current law. The estate tax exemption alone has shifted considerably over the decades.

This does not mean the trust is invalid or that anything was done wrong. It means the law moved, and a document written around the old rules is worth a look to confirm it still does what your parent actually wants it to do.

A review with the attorney who handled the original document is often a good place to start. If that attorney is no longer practicing, most estate planning attorneys can review an existing trust and advise on whether any updates are worth making.

An older plan is not a failed one

The fact that a parent set up a trust at all puts them ahead of most families. The goal of checking in is not to find fault. It is to make sure a document written years ago still holds up.

Bringing a sibling into the conversation before raising it with your parent can also help distribute the weight of it. This does not have to fall on one person, and a shared family conversation tends to go more smoothly than one adult child raising it alone.

For more on how to start that conversation, see How to Help Your Parents Get Their Estate Plan in Order and 4 Things I Found When I Went Through My Parents' Estate Plan With Them.

What about YOUR plan?

While you are thinking about your parents' plan, it is worth asking about your own. If you live in Michigan, Mitzi can guide you through putting your foundational documents in place today, including powers of attorney, at your own pace and without a law firm appointment. Get started with Mitzi today.

Not in Michigan? Take our 5 minute Prepare to Plan Quiz for a free personalized planning checklist, it also adds you to our waitlist so you’re the first to know when Mitzi comes to your state.

Frequently Asked Questions

How often should a trust be reviewed? Many people are encouraged to give a trust a fresh look every few years, and especially after major life events such as a death, divorce, significant change in assets, or a move to a different state. For trusts that have not been reviewed in a decade or more, checking in with the drafting attorney is generally worth the time even if nothing obviously feels wrong.

What is a successor trustee and why does it matter? A successor trustee is the person named in a trust to step in and manage it when the original trustee is no longer able to, whether due to incapacity, death, or resignation. For most revocable living trusts, the person who created the trust serves as their own trustee while they are alive and well. If the named successor is unavailable when needed, the trust may stall, and resolving it can sometimes require court involvement.

Can a trust be updated after it is signed? In most cases, yes. A revocable living trust can typically be amended or restated by the person who created it while they are alive and have capacity. The process generally involves working with an estate planning attorney to document the changes properly. An unsigned draft or a verbal intention to change something typically has no legal effect.

What happens if a trust does not include digital assets? If a trust does not include language about digital assets, a family may have limited legal authority to access or manage accounts, photos, and other assets that exist online after the trust creator passes. Adding a digital assets provision is a targeted update many estate planning attorneys can help with and generally does not require rewriting the full document.

How do tax law changes affect an older trust? Tax laws, including estate tax exemptions and rules around how assets are treated, have changed significantly over the decades. Some older trusts include formulas designed around rules that no longer apply and may produce unintended results under current law. This does not mean the trust is invalid, but a review with an estate planning attorney is worth considering to confirm the document still functions as intended

How do I bring up an outdated trust with a parent? A common approach is to frame it as wanting to be prepared and asking when they last looked at their plan together. Involving a sibling so it does not fall on one person alone tends to help. For more on starting this conversation, see our guide on how to help your parents get their estate plan in order.

Katie Katz