Changing a Will: Everything You Need To Know
Creating and changing a will are both relatively simple to do. You can use a simple will form to create your will yourself or use it as a guide when consulting with an attorney to draft it. Once you have created your will, it is critical to review it periodically to determine whether any changes to a will are necessary.
As your family evolves, the needs of you and your loved ones are likely to change. It can happen due to relocations, divorces, marriages, new additions, and many other reasons. These three factors below could make will changes desirable.
Getting married is a common reason for updating your will. All states have laws regulating how much of your estate will be inherited by your spouse if you die without a will. However, most people want to be sure their wishes are followed and that their surviving spouse is adequately provided for upon death. Of course, if you and your spouse have purchased assets together, your will can only affect your ownership portion of that asset. Knowing whether you live in a community property state is vital to understanding how your spouse’s rights are treated upon death.
If you marry for the first time and do not have children, you will likely have an easier time choosing how to change your will and allocate your assets. However, your decisions may be more complicated if you remarry or already have children. In these circumstances, it is wise to carefully consider your wishes and make the necessary changes to your will to reflect your new marital status.
No matter how much you love your new stepchildren, in most states, they are not entitled to receive a portion of your inheritance automatically. If you want your stepchildren to be provided for after your death, you should update your will to include them in the way that best reflects your wishes.
Birth or adoption of children
While most states’ laws allow your minor children to receive a portion of your estate, you should update your will after having children. Rather than leave it up to your state, change your will to decide how your children will be treated upon your death. If you have minor children, someone else will need to manage any assets left to them. You may wish to appoint the person you want to manage their property, such as a guardian, or you may choose to place assets in trust for your children.
Regardless, when a new child joins your family, it is wise to discuss your circumstances with an experienced attorney to be sure your wishes are known. A good estate planning attorney can help you create a new will, trust formation, modify a will, and all your estate planning needs.
You must consider updating your will after a divorce. Depending on your state, a legacy to a former spouse may or may not be honored after a subsequent divorce. Thus, you should review your legal will, decide whether you wish to make any bequests to your former spouse, and make any necessary changes to your will.
How To Make Changes To Your Will
Fortunately, making changes to your will is easy and can be done anytime, provided you are mentally competent. If you lack mental capacity, however, you will no longer be able to change your will. How you amend your will depends on what affects your desire. Regardless of the changes you want to make, it is wise to consult with an estate planning lawyer in your state to be sure the changes are made correctly and without accidentally invalidating your current will.
Create a will codicil
A will codicil is generally used to make a simple will amendment. It is a separate legal document that is attached to your original will. The execution and format of a will codicil must follow the exact requirements as the original will to be valid. For example, if your state requires two witnesses and a notary to execute a will, it will require the same for a codicil. Therefore, you must consult with an experienced estate planning attorney in your area before altering a will. This type of document is best used for minor changes to your will, such as changing the designation of your executor or updating a beneficiary’s legal name, and is not best suited for making significant changes to your will.
Make a personal property memorandum
You might wish to change only that document if you referenced a personal property memorandum in your original will. A private property memorandum is a statement of who you want to receive your moveable personal property. Changing a private property memorandum is simple if you have one attached to your original will. However, if you did not have a personal property memorandum as an attachment to your original will, you would not be able to use this document now as an amendment to your will. Instead, you would need to either create a new will or make a will codicil. Again, you should seek the counsel of an experienced estate planning lawyer to discuss what is needed to make the desired changes to your will.
Create a new will and revoke the original will
If the changes you wish to make to your will are significant, it may be easier and preferable to create a new will that revokes all prior wills rather than updating a will. Many testators feel more peace of mind by creating an entirely new will, which can help clarify your wishes to all relevant parties. Be sure there is a proper revocation of your last will. Depending upon your state laws, you may want to have witnesses to your obliterating the will. You want to be sure there is no confusion about your intentions to help prevent conflict between your heirs. A qualified estate planning or probate attorney in your state can help guide you through how to update a will.
Who Can Change a Will?
Only the person who created a will can change it. But can you change your will at any time? Fortunately, a testator may change their will as many times as they wish as long as they are mentally competent. You can change your will at any time if you are mentally competent. However, if a testator is deemed mentally incompetent, they will not be able to make changes to their will legally.
Changes to Other Estate Documents
When you experience significant life events that make your will desirable, you may also need to change other estate planning documents. Consider whether your power of attorney documents, personal representative designation, living will, living trusts, bank accounts, life insurance policies, retirement accounts, stocks, and other assets need to be modified. Many of these assets transfer outside of your will upon your death.
For example, you need to use a change of beneficiaries form provided by your insurance company to make changes to who will inherit your life insurance proceeds, as this can not be changed by changing your will. You may also use a transfer-on-death form to transfer certain financial accounts. When considering changes to your will and other estate planning documents, it is critical to understand how the law applies to all your assets. Seek the advice of a probate or estate planning lawyer in your state to advise and guide you with these important decisions.
As long as a person is mentally competent, it is simple to create and change a will. The type of changes you’d like to make and your unique financial situation will determine what type of documents you will need. You may need a simple codicil or change to a personal property memorandum. However, these legal documents must be created and executed according to the laws of your state to be sure they are valid and do not inadvertently void your original will. Otherwise, you may end up with executory contracts with unperformed obligations from both parties.
The wisest course of action is to seek the advice and guidance of an experienced estate planning attorney in your state to be sure you follow the rules and validly set forth your wishes. Of course, if you want to make significant changes to your will, it is usually best to create an entirely new will and revoke the prior will. It is also essential to consider the other estate documents that may need to be changed, such as beneficiary designations for life insurance policies and other assets.