A last will is a formal legal term for a will. The phrase “last will” appears as part of the phrase “Last Will and Testament.” Previously, the term “will” referred to distribution of real property at death. The term “testament” referred to personal property distributions. A “Last Will and Testament,” therefore, was two separate documents. Today, most states define the term “last will” simply to mean a legal instrument that disposes of real and personal property.
What Will is Recognized as the “Last Will”?
An individual who creates a will (known as a testator) can revoke that will at any time before death. Therefore, it is not uncommon or a person to make multiple wills over their lifetime. The “last” will, meaning the one whose terms will be given effect, is generally the most recently executed will that has not been revoked.
How Does Someone Revoke a Prior Will?
To ensure a will is their final will, the testator must generally revoke all prior wills. To revoke a will, a testator can destroy that will by physical acts, such as burning, cutting, mutilating, or obliterating the will. The testator must have an intent to revoke at the time of the physical act. Therefore, accidental destruction of the will does not revoke it, because the intent to revoke did not exist when the will was destroyed.
Some states require that the entire will be destroyed to be revoked. This means that if the testator physically destroys certain provisions while leaving others intact, the will is not considered to have been revoked. Other states permit partial revocation. This means if a testator physically destroys a specific provision or provisions of the will, those provisions will be deemed revoked, but the undestroyed provisions will be considered part of the final will.
In many states, a will may be revoked by implication. This means the law implies the will has been revoked, based on the contents of a later-drafted will. If a later-drafted will contains provisions that are inconsistent with the earlier will, and the later will completely disposes of the testator’s property, the later will revokes the earlier will.
What Happens if a Will Cannot be Found After Death?
If, after death, a will is retrieved from the testator’s attorney’s office, or from their personal effects, that document is presumed to be the last will, unless proven otherwise. Sometimes, a will that is last seen in the testator’s or their attorney’s possession is not found at death. If this will is not found with the decedent’s last effects, and neither the attorney, the probate court, nor any other individual can find the will, then the will is considered lost. Traditionally, state law has presumed that a lost will was purposefully revoked. State law has also presumed that if a will last seen in the testator’s possession is found mutilated, was destroyed with an intent to revoke it.
The presumption that a lost will is a “dead” will can be rebutted (overcome). To do this, the person claiming the lost will was “meant” to be the final will, must prove that the will was not actually revoked, that the will was properly executed (signed and witnessed), and that the will’s provisions are “proved” (were the provisions the testator intended). A will’s conditions can be proven by individuals who were present at the will’s signing, and who “saw” those provisions.
How Can I Modify a Will to Account for Changed Circumstances?
Sometimes, a testator may wish to modify a will because of change in circumstances. For example, a named beneficiary may die before the testator does, and the testator may wish to give another person what the beneficiary was to receive.
Creation of a new will, with the new provisions the testator wants, suffices to change the will. The changed will, will be regarded as the “final” will. However, creating a brand-new will is not required. Instead, a testator may create a codicil, or amendment, to the current will. The codicil will specify the change(s) the testator wishes to make. In most states, for a codicil to be valid, the codicil must be executed with the same “formalities” as the will was executed with.
This means, for example, that if your state requires that two witnesses must observe you signing the will, two witnesses must observe you signing the codicil as well. If those witnesses are prohibited from having an interest in the will, the witnesses are prohibited from having an interest in the codicil.
Other formalities include items such as the testator’s signature, along with the date; a requirement that the testator be age 18 or older and of sound mind when executing the will, and the testator’s making some kind of written notation that the will being executed is the “last” will. This notation can be made by writing the phrase “last will” within the will’s heading, for example.
Do I Need a Lawyer’s Help to Create a Last Will?
If you wish to create, modify, or revoke a last will, you should contact an estate lawyer. An experienced estate attorney near you can assist with creating, modifying, or executing your last will.