A last will and testament is the most important legal document most people ever create. This invaluable guide to how to distribute assets and handle post-life affairs informs not only the executor appointed by the will, but also the probate court responsible for settling the official record on the deceased.
Once a will is written, it can feel like a great weight has been lifted. Assets have been assigned to heirs and the work has been ratified and submitted. However, life is not a static thing. Sometimes, circumstances change dramatically enough that an individual may feel that they need to revisit their will to make adjustments.
The first thing to know about changing a will is how to accomplish that task. In general, there are two ways to change a will: add a codicil or write a new will.
A codicil is a legal document that amends a previously established legal document. This includes documents like wills. A codicil can be used to make an additional statement after the main will has been published. Someone looking to make a minor change to the will can use a codicil to:
While codicils can be a useful tool, there are limits on its power. A codicil cannot remove someone from the will, it can’t always add a new beneficiary, and it cannot significantly alter the will by negating or removing previously ratified sections. Sometimes a codicil will also not be accepted because there have already been too many codicils added to a will so they should be used sparingly.
Nonetheless, codicils are a more cost-effective way to make minor alterations to a will than drafting a completely new will. When someone does decide to make a codicil, the process is relatively straightforward.
While the requirements for a codicil vary by state, in general the codicil should be written down, either by the individual whose will it is or a trusts & estates attorney working on their behalf, with all the new changes and then it can be submitted for review. The codicil should be reviewed by the individual’s attorney to ensure that a probate judge will accept the codicil. Once the codicil has been finalized, it will be signed and dated by the individual as well as the required number of witnesses. Once the codicil is created, it must be kept with the will so that the documents can be reviewed together after the individual’s passing.
If there are too many codicils, it may be necessary to consolidate them into a new will which will supersede the old one. This is a costlier option, but allows for broader changes to be made.
There are a myriad of reasons that may make it necessary to adjust a will. These reasons can include changes to family dynamics, changes to beneficiaries, or changes in circumstances that make the will ineffective.
Changes in an individual’s family situation can make it necessary to adjust or even rewrite a will. For example, if an individual is married with a joint will but that marriage collapses, the individual will have to change the joint will to an individual one as the provisions may no longer align with the individual’s wishes.
On the other hand, perhaps after the individual writes their initial will they marry a spouse who has children from a different marriage and after some years of living in this hybrid family dynamic, they wish to leave their step-children some of their assets. These circumstances arise naturally but create the need for alterations to keep pace with the course of the individual’s life.
Other changes may include removing beneficiaries who are no longer in the individual’s life, who have wronged the individual, or have passed away. By adjusting the will to reflect this change, assets intended for the former beneficiary can be redistributed to others.
Finally, a will may need to be changed because it is no longer needed. Some wills, like pour-over wills, are inextricably tied to a living trust. If the individual choses to dissolve the living trust before their death, they will also have to rewrite the pour-over clauses of the will that funnel assets to a trust that no longer exists. Similarly, if a will contains a testamentary trust clause which creates a trust upon the death of the individual, any changes to the terms of that thrust are also changes to the will that creates it.
No matter what the reason for changing a will, it is important to make sure that if a will needs to be changed, that change happens as soon as possible. Keeping an up to date will can ensure that should an accident or other tragedy occur, the estate of the deceased will be handled in accordance with that person’s explicit wishes.
If you are looking to begin your estate planning journey, or change a preexisting will, you will need an experienced trusts & estates attorney. A trusts & estates attorney can consult with you about the best options to create an estate plan and execute them in a way that makes them resistant to challenge from probate courts and specifically tailored to your needs. The best place to find a trusts & estates attorney is at Attorney at Law.
At AAL, our nationwide network of attorneys and law firms allows us to match you with an experienced trusts & estates attorney in your area. Our partners have the resources, legal expertise, and experience necessary to unravel even the most complex trusts & estates cases.
In addition to resources and experience, our partners also excel in client care. Our partners understand that at the core of a trust & estate case is the loss of life and the desire to see the estate distributed in a way that honors the deceased.
Don’t wait. Contact AAL today for a free, no-obligation consultation and secure your future.