April 23rd, 2023
April 23rd, 2023
Rating
4.2 - 3 votes
Once a Last Will and Testament is made, it is good until you die, change it, or revoke it. If you make a will today and die fifty years from now without making any changes to it, the property will be distributed according to the will you made a half-century earlier. It's easy to imagine that a few changes may have occurred over that time that would warrant making changes to a will. It's prudent to periodically review your will to make sure that it carries out your current wishes and is not adversely affected by constantly changing estate tax laws. As a general rule, a will should be reviewed and, if necessary, updated at least every four years to reflect changing life circumstances, laws, and intentions. However, certain life events especially demand that you review your will for probably revision. This guide will explore each of these events that would warrant a review of your will and then explain how a will can be updated, changed, or revoked if that becomes necessary.
You can change, add to, or even revoke your will any time before your death as long as you are physically and mentally competent to make the change. If you fail to change or rewrite your will to account for changes in your life, the courts will give as much effect to your old will as possible. Some changes may be accommodated by the law, regardless of what your will says. For example, if you get married, your spouse is entitled to a certain percentage of your estate (which varies by state), no matter what you say in your will. However, the purpose of a will is to make sure that your wishes are accurately reflected. This is why it's best to review your will under the following circumstances and then modify your will as necessary to keep up with changes in your desires and the law.
You need to update your will if you have a child, through birth or adoption, after you make your will. You may want to appoint a guardian for your child, set up a trust fund, or otherwise make provisions for your child in the event of your death. If you do not change your will after your child is born, the law will change it for you. In almost every state, a child born after you make a will is entitled to the same share they would have received if you had died without a will. If you don't update your will after you have a child, the law ordinarily assumes that you simply hadn't yet gotten around to changing your will, not that you intended to disinherit the new child. If you do wish to disinherit the child, you will have to make a new will or amendment, known as a codicil, to do just that. Adopted children usually are treated the same as biological children when it comes to omission. However, if you fail to name an unadopted stepchild, that stepchild usually gets nothing.
You should review your will when a close family member, such as a spouse, child, or parent has died, or when a beneficiary named in the will has died. If your will contains a gift to a deceased beneficiary, that gift will go to the alternate who has been named, if any. If you have not named anyone, it will pass according to the terms of the residuary clause. A residuary clause is a clause in the will that gives anyway any portion of an estate after all other specific gifts have been given away. If there is no residuary clause, that portion will be treated as if there were no will at all.
When you get married, you will most likely want to change your will to provide for your new spouse. What happens if you don't change your will? In many states, when you get married, any will you have at the time of the marriage is automatically revoked. If you die without making a new will, your property will be distributed as though there were no will at all, even if you didn't want to make any changes to the earlier will. If you get married but don't want to change your earlier will, you should at least create a codicil stating that the original will signed before your marriage is to remain in effect.
If you have obtained a divorce, also known as a dissolution of marriage, or are in the process of doing so, you should review your will for possible changes. In some states, the act of divorce automatically cuts the ex-spouse out of the will. However, in other states, the fact that a person has obtained a divorce does not automatically revoke a will.
You should review your will for possible changes when you move from one state to another. Usually, a will that was valid in the state where it was made will be accepted as valid in the state you move to. However, even if it is valid in your new state, you may still want to have a new will prepared if the gift and inheritance tax laws of the new state affect you. You should also consider changing your executor and the guardian for any children you have to someone who lives closer to your new home.
For a young couple starting out without children or much property, a simple will may be sufficient. However, as the size of their family and estate grows, they will need to change their wills to nominate guardians for their minor children and to set up trusts for them, as well as doing tax planning to minimize the amount of federal estate and state inheritance taxes their estate will need to pay when they die. When the children are grown and have children of their own, changes in the will may again be called for.
Similarly, when there are major changes in the law, it is important to review your will. For example, if your will was prepared before the Economic Growth and Tax Reconciliation Act of 2001 was passed into law, you will want to review your will because of significant changes in the estate tax laws that may impact your will.
If you wish to change your will, no matter how minor that change may appear to you, you have two options: make a completely new will or make a "codicil" to your existing will. A Codicil to Last Will and Testament is an amendment to a will and must be prepared and executed (signed and witnessed) the same as a will. A codicil is usually only appropriate when the change is relatively short, for example changing the name of a beneficiary or executor. If the changes are long or numerous, or if you have already made a codicil or two to your will, it is usually best to prepare a new will to prevent confusion. The same mental ability and freedom from undue influence is required for a codicil as a will, so if the changes are substantial, it may be advisable to write a new will. On the other hand, if there are some question of the will maker's capacity, it may be better simply to execute a codicil, so that even if it is thrown out, the remainder of the will remain valid.
In states that recognize a holographic will (i.e. a will that's been handwritten), you can make a holographic codicil that is entirely handwritten, dated, and signed. However, for extra precaution, even in states that recognize holographic wills and codicils, it is safest to make formal witnessed codicil. This means that it should be typed up, printed out, dated, signed by you and signed by the appropriate number of witnesses. The witnesses to the codicil do not need to be the same people who acted as witnesses to the signing of the will. The codicil should be dated so the court can tell whether it was made after the will was executed. Once the codicil is made, you should make a photocopy so that you can keep it on hand to periodically review it along with your other estate documents. The codicil should be kept in the same place as the full will.
Sometimes when you undergo a major life change, such as a divorce, remarriage, winning the lottery, or having children, it's a better idea to rewrite your will from scratch rather than making many small changes through codicils. The simplest way to revoke an old will is to rip up, shred, burn, or otherwise destroy the will. The destruction of the will must be done with the specific intent to revoke it and you must be of sufficient mental capacity to revoke it. A will destroyed by accident or by a person who lacks sufficient mental competency to revoke it remains in effect. When this happens, a copy of the original can be used to verify its contents.
Another way to revoke an old will is to execute a new document saying that the will is being revoked. When a new will is prepared, a clause is usually inserted stating that all wills and codicils previously made by that person are revoked. When the new will is written, be sure to include the date that it was signed and executed. Otherwise, the court is likely to rule that the new will only revokes the old will where the two conflict -- which could cause problems.
Life doesn't stand still and after you've crafted your initial estate plan, your circumstances are likely to change. You may have more children, acquire more assets, get divorced or remarried. Further, the law may change, making some of your estate planning obsolete or counterproductive. Most of these life changes are also a change to review and update your estate plan to make sure everything is accounted for and your will accurately reflects your wishes.
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.