A will is a foundational estate planning document. Accompanied by other important documents such as healthcare and financial powers of attorney, it is a basic estate plan suitable for many. However, reports have shown for decades that fewer than 50% of US adults have a will. If you are among the minority of Americans with this crucial estate planning document, then you probably recognize the risks of not having a will.
But simply creating a will does not mean that your estate plan is complete or final. Your will should be reviewed regularly and may need to be updated from time to time. It may even need to be revoked and redrafted entirely.
Usually, revoking a will is an intentional act by the will maker. But a will may be revoked in whole or in part by state law under certain circumstances. Certain actions by a beneficiary can also revoke that person’s interest in the will.
What Is in a Will?
A will is a legal document that provides instructions about who should receive a person’s money and property after the person’s death and who they would like to care for their dependents. A basic will should spell out the following:
- who receives the decedent’s assets such as real estate, bank accounts, investments, business interests, and personal possessions, and in what amount,
- who is to serve as personal representative, the person responsible for making sure that instructions in the will are carried out, and
- nomination of guardian for any minor children.
After a person passes away, their will must go through the probate process. If property is owned in more than one state, multiple probate proceedings may be necessary. The probate process ensures that the directions of the will are followed properly. If a person dies without a will or some other form of planning, intestate laws of the state in which they were living or owned property determine the distribution of the person’s assets and the appointment of executors and guardians.
Most people want to make their own decisions about such important matters rather than leaving them to the state. Yet state law will determine what will happen if a person does not have a will.
A will should be updated as life circumstances dictate. A marriage or divorce, birth of a child or grandchild, change in assets, retirement, or a move to another state or country are all life events that lead to the need to review the will. The will maker might also have a change of heart about beneficiaries or a guardianship arrangement due to a personal falling out or changes in the circumstances of a beneficiary or potential guardian.
In general, an estate plan should be reviewed—and possibly updated—every few years. Even if the person who created the will has not experienced a major life event, periodic reviews are essential to ensure that the will still accurately represents their intentions and relevant law.
Updating an Existing Will
Amendments to a will are made by creating a legal document called a codicil. The requirements for signing a valid codicil are typically like those for signing a will.
Codicils are somewhat of a holdover from years past, when drafting a new will by hand was more of a chore than it is now in the days of computers and word processing tools. Nowadays, it is easier than it used to be to create a new will that contains the amended portions. Also, creating a new will removes some of the confusion or legal challenges that can arise when one or more codicils must be read together with the provisions in the original will.
Using a codicil to make minor changes to a will—such as changing the executor—does not necessarily revoke it. However, in some states, a codicil can be used to republish or revoke a will.
Executing a New Will
Your estate planning lawyer may advise you that a codicil is not worth the potential problems it can cause and instead recommend that you make a new will. The new will must be properly executed in accordance with state law. In addition, the will should contain language that clearly states the will maker’s desire to revoke all prior wills. However, there may be instances in which the will maker does not want all prior wills revoked (for example, they may need to have a separate will for property owned in a foreign country).
Destroying an Old Will
The fastest way to revoke a will is to physically destroy it. State law will determine what qualifies as the destruction of a will. Most states require that the destruction must be done with the intent and for the purpose of revocation, so accidentally destroying a will may not revoke it. Note, state law may require something more than making notes in the margin or placing an “X” through part of a will. Some action such as cutting, tearing, burning, destroying, or mutilating the document may be required.
The law may allow the will maker to direct another person to physically destroy a will on their behalf, provided that the will maker is there to witness it. State law may also require the presence of two additional witnesses. Depending on the state, there could be a presumption that the will was destroyed if it cannot be located. However, most states have processes by which lost wills may be proven by using copies and one or more disinterested witnesses. If the intent is to revoke a will, it is best to consult an experienced estate planning attorney.
If the destruction of a will does not comply with the requirements of state law, the court may rule that it was improperly destroyed and treat it as though it is still in effect. Typically, when somebody destroys an old will, they make a new will. But if the old will is not legally revoked, and a new one is created, the existence of multiple wills could lead to litigation.
Revoking a Will by Operation of Law
State law may provide that a will is revoked, in part or in full, if certain events take place, such as the following:
- If a person gets divorced or has their marriage annulled, any part of the will that refers to their spouse, or the spouse’s family, is automatically revoked in many states.
- There is a new will or codicil that includes provisions that contradict provisions in old will or codicil.
- A beneficiary’s interest is revoked under a “slayer statute” if the beneficiary kills the will.
Thinking of Changing Your Will? Let Us Help
Whether you are making minor changes to your will or destroying the old one and starting from scratch, any revocation of your will must comply with state law. Otherwise, a court might not recognize your final wishes, which can produce consequences akin to not having a will at all and cause your loved ones additional stress and potential conflict.
An estate plan should be reviewed and updated every few years to take into account changes in circumstances and wishes, as well as changes in the applicable law. To discuss changes to your estate plan, please contact us to schedule an appointment.