You should review and change your will on a regular basis in order to keep it current. Many people these days make wills, but not all of them realize that it needs to be modified whenever something changes in their life, most often with their finances or relationships. It is wise to update or revoke your will in light of any new circumstances, that way your family and friends avoid any unnecessary problems when your estate is being settled.
Other than a simple change of mind, there are many events that may prompt you to change your will. Common reasons for changing a will are:
Changes in your financial situation or assets
Changes in your original beneficiaries
In the event of a divorce, the law automatically revokes any provisions in your will that favor your ex-spouse. Regardless, you still need to update your will because if you do not redirect the property originally devised to your ex-spouse to another beneficiary, then that property will either fall into the residuary clause, or if there is none, it will pass to your intestate heirs.
You can change your will in one of two ways. You can revoke your current will and write a new one. Or you can amend your existing will by creating a codicil. A codicil is a formal supplement to your will and must conform to the same requirements for executing a will (must be written and signed by you and your witnesses).
TIP: If you execute a codicil to your will, make sure that you store it with your will. If the changes in your codicil are extensive, you should consider revoking the old will and starting over with a new one. This will avoid any confusion when it is offered for probate and will insure that you don’t make any mistakes.
If you revoke your will, it is legally dead – as if you never created it. You can revoke your will by a later writing (e.g., a new will or codicil that is totally inconsistent with your previous will or that includes a statement that you intend to revoke your previous will) or by physically destroying it (burning, canceling, tearing, or obliterating it). If you physically destroy your will, make sure you destroy the entire will; otherwise you risk an ineffective revocation. For example, if you want to write “void” on your will, write it across the face of every page, not just the first page.
TIP: Make sure that your new will includes a statement indicating your intent to revoke the old will. It is usually sufficient to state something to effect that you “revoke all prior wills and codicils”; This will protect your intentions in the event that you forgot to destroy any originals or copies of prior wills or codicils.
You can have your attorney destroy the will for you, but he must do it in your presence. If you are on the phone with him when he does it, the revocation is ineffective and the will is still valid.
If you do not properly revoke your old will, it remains alive and it will be admitted to probate along with your new will. In that event, the court will try to dispose of your estate pursuant to the terms of both wills, and if there is an inconsistency between the two, the terms of the most recent will take precedence. All the remaining provisions of the old will are still given effect, provided they do not conflict with the new will!
EXAMPLE: Assume you have a will that, among other gifts, devises your car to your mother and your home to your sister. You later write a new will that devises the car to your father, but you don’t mention the home and you never revoke the old will. Both wills are valid and both will be probated. Because there is an inconsistency between the two wills with respect to who gets your car, the most recent will controls and it passes to your father. The home will pass to your sister under the first will even if you didn’t want her to receive it.
Tip: If your new will is completely inconsistent with the prior will, then you don’t need to worry about this happening – the prior will is considered to be revoked. This makes sense if you think about it – the second will controls any inconsistencies between the two wills, so if the two wills are entirely inconsistent, then the second one controls, revoking the prior will! However, it’s best to err on side of caution and destroy any unwanted wills.
This is called a “partial revocation by physical act,” and although it is permitted in some states, it’s not recommended. What if you have so many changes that you are left with a will with a lot of crossed-out provisions? How is the court to know whether you intended to revoke the entire will or just portions of it? And what if your new clauses are hard to read or understand? At a minimum, you should make the change by executing a codicil to the will. And if your changes are significant, then you would do your beneficiaries a favor by rewriting your will. It is more time-consuming but you ensure that there will be no problems when the will is probated.
No. This type of change will be ineffective because it was not present when the will was executed. If you add anything new to the will, you must re-execute it for the new material to be valid. In other words, it must again be signed by you and your witnesses.
You can’t. If the will can’t be found and it was last seen in your mother’s possession, then the court will assume that she revoked it. Also, if it is found in a damaged condition (e.g., torn into pieces), it is presumed that she damaged it with the intent to revoke it; so again, it will be invalid. However, if you can prove that the will was not revoked by your mother, then the court will accept proof of the will’s contents by carbon copy or photocopy, or by the testimony of a person who knew its contents. One way to prove this is if you have evidence that a third party (perhaps someone who was left out of the will) had access to the will and destroyed or damaged it.
Yes. If you create a codicil to your will and then later revoke the codicil, the will is still valid and the clauses in the will that were changed by the codicil now take their original effect.
Standing alone, the will is invalid because without your signature it is not properly executed. However, if your codicil was properly executed (in writing and signed by you and two witnesses), then it validates your previously invalid will as of the date of the codicil. Therefore, your will is considered to be valid.