A will is a written communication by a person that details how they want their property distributed at death. Having a valid written will in place before you pass away can help minimize confusion and disputes in how to handle your estate. It can also make sure that your property is divided and distributed according to your intent and wishes.
In most states, an oral will, even if it has been tape recorded, is not considered valid. A proper will must be signed in front of witnesses in order to be enforceable after the creator’s death.
Just because you have a will in place, however, doesn’t mean that everything is set in stone; you can still edit and make changes to the will during your lifetime. However, it is important to follow certain rules when you do make changes.
What are the Requirements for a Valid Will?
The specific rules for valid wills depend on the state where you live. An experienced estate planning attorney can help you in drafting a will that will be valid even if you move to a different state.
Some of the main requirements for a valid will (no matter where you live) include:
- The testator (the person to whom the will applies) must have reached the age of majority (either 18 or 21, depending on the state);
- The testator must be of sound mind when the will is executed;
- The testator must sign and date the will;
- A witness must be present to confirm the will. Witnesses cannot also be interested parties to the will (meaning that they can’t be named to receive anything under the will). Witnesses must also be mentally competent at the time they witness the signing of the will; and
- The document must expressly state that it is your will.
Usually, a will does not have to be notarized, although some attorneys will provide for a notary to be present as a witness.
When is a Good Time to Change My Will?
If you already have a will in place, you are doing a great job. There are many people out there who have not thought about estate planning. But how often do you need to revisit and revise your will? When is a good time to make changes to your will?
Generally speaking, the best time to redo or change your will is when you undergo a big life change. It is important to remember that your will should always reflect and accommodate your current situation in life, so you’ll want to revise it when big things change to make sure that the document itself keeps up with you.
That being said, there are some circumstances in particular that should lead you to consider making changes to your will:
- You and your partner are unmarried: If you and your partner are not married to one another, they will not automatically inherit anything from you if something were to happen to you. You may want to make new wills or change your current wills to make sure that they are able to inherit property according to your wishes;
- You get married: If you are married and have not decided what property you want your spouse to inherit, you run the risk of having the state decide for you. Having an updated will in place is a good idea to help make sure your spouse inherits according to your wishes;
- You and your spouse move to another state: Some states have differing rules about how to treat ownership of property by married couples. It would be useful if you consulted an attorney on how your move to a new state (and the new state’s property laws) will affect your estate plan;
- You have a baby: You will want to modify or change your will to provide for your new baby, including arrangements for a guardian in case you and your spouse are unable to take care of the child. You may also want your children to receive special gifts or particular pieces of property, which may require a change in your will;
- You have a new stepchild: Your stepchild may not have any automatic legal right to inherit property from you unless you legally adopt them. An easier way is to simply include them in your will;
- You get divorced: Depending on the state you live in, getting divorced can affect your will in different ways, including revoking or cancelling the will. (If your will states that your property goes to “my wife,” but you then get divorced, your will may become invalid.) It is a good idea to discuss with an attorney exactly how this life change will affect your estate plan; and
- You change your mind: This may seem like a simple thing, but you can simply change your mind about how you want a certain piece of property to be distributed. Maybe you want it to go to someone else, or to a different charity. If you do in fact change your mind, you will want to have that reflected in your written will so that the property can be distributed according to your wishes.
Of course, you don’t necessarily have to leave behind anything at all, if you so choose. You can choose to spend all your assets and leave nothing to those who would inherit, if that is what you would like to do. However, it is still important to have a written will in place to clarify what should happen to your assets and belongings when you die.
If you die without having a valid will in place, your assets will be divided according to the laws of intestacy. This means that whatever you have can be passed down to your heirs and relatives according to their relationship to you.
How Do I Change My Will?
Once you have decided what changes you want to make in your will, you will need to put those changes in writing. There are two common methods for changing or modifying a will:
- Codicil: A codicil is an amendment to your already-existing will, sometimes included as an attachment on a separate page. However, codicils have fallen out of favor with the growth of word processing software that makes editing documents faster and easier. Some also believe that adding amendments to the old will can make reading the document confusing and complex; and
- Making a New Will: This is the preferred way to make changes now. Computer software makes it easier to draft a full new document and make edits. When you create a new will, all of the information regarding your assets and how they should be divided are easily found in one cohesive document. This is easier than having to read through the document and the different codicils.
While both methods are equally valid, keep in mind that each state has its own laws and requirements, even when it comes to editing your will. You may want to ask an attorney if you have specific questions or concerns regarding the laws in your area when it comes to estate planning.
Should I Hire a Lawyer if I Need Help Changing My Will?
While some states may allow for self-drafted wills, it is always a good idea to consult an attorney who works in wills, trusts, and estates. Your attorney will be able to guide you through the nuances and legal formalities of drafting a valid will and changing the will so that it will stand in probate court.
Your attorney can also advise you on the best way to distribute your property in ways that follow existing law, and even advise you on the tax implications of your estate planning.