A will is an essential estate planning legal document that allows a person to designate the way in which their property will be distributed upon their death. The property that a will may dispose of includes both real or personal property. Typically, in order for a will to be valid, the will must be in writing, signed, witnessed, and the person creating the will must have testamentary and mental capacity (that is, they must be of legal age and mentally able to form a will).
However, the requirements for executing a valid will vary according to state law, and what type of will is being created. For example, a holographic will typically does not need to be witnessed, so long as the will is written and signed by the person creating the will.
When wills are made, the current wishes of the person who created the will (i.e. the “testator”) have essentially been reduced to a writing. However, the situation or wishes of a person may change after a valid will has been created, and that person may want to update or modify their will. As discussed below, in some instances changing a will is not only a good idea, but necessary in order to address the person’s new situation.
How Do I Modify a Will?
Before modifying a will, it is important to determine whether or not you have created a valid legal will, and what type of will you created. It is important to first determine the validity and type of your will before attempting to alter it. This is because modifying a valid attested will may be more difficult and expensive than modifying an incomplete or holographic will. Generally, when modifying a will you have two options: (1) write a new will and revoke your old will; or (2) add a codicil to your current will.
Simply put, a codicil is a written amendment or alteration to an existing will. A codicil may involve minor changes or deletions to a will, such as updating the property to be distributed, or in some cases major alterations, such as removing a named beneficiary from the will entirely. Importantly, in order to create a valid codicil, the same requirements must be met that were met when the original will was created. In most jurisdictions, this means that the testator must have testamentary capacity, and the codicil must be written, signed, and witnessed (typically involving two witnesses).
As noted above, the other option is drafting a completely new will and revoking your old will. Sometimes the creation of a new will in and of itself will serve to revoke an older will, but not always. This means it is often a better idea to expressly revoke an older will in writing, or by some other legal action, than to simply rely on the new will alone.
It is also important to note the ways in which a will may not be modified. Wills may not be modified by a person who holds a power of attorney, they may only be modified by an action made by the testator. Further, a power of attorney ends upon the death of the testator. Additionally, an executor named in the will or the attorney that may have drafted the will also do not have the power to modify an existing will.
What are Some Reasons to Modify a Will?
As noted above, there are many reasons why a person may want to modify a will, but most commonly wills are modified due to a significant life change of the testator or the beneficiaries. For example, the following is a list of reasons where a person may wish to modify their will:
- Divorce: The most common reason people modify their will is because of divorce, and this is especially true if the testator later remarries. Depending on the state that you live in, your ex-spouse may still have claim for an inheritance even if you modify your will, however you may be able to modify what is left to them through a modification or revocation of your will. Further, most states will distribute property in accordance with a will, even if you have found a new partner or spouse, thus, it is important to update your will in the event of a divorce;
- New Beneficiary: The other most common reason for modifying a will is due to a new beneficiary. For instance, if a will was created and then years later the testator has a child, the testator then may wish to alter their will to include that pretermitted child. Additionally, if the testator remarries, they may want to include their new step children, if any, in their will. Lastly, a testator may simply change their mind about a certain heir, such as through the repair or dissolution of their relationship with a family member or heir; or
- Change in Assets: The last most common reason a testator may want to modify their will is from a change in the testator’s assets. One extreme example is if the testator was poor when they created their will, but then later wins the lottery, they may want to designate through their will who is to receive those funds. A more common example is when a person disposes of a named asset in the will, such as getting rid of a family heirloom. In that situation, the testator may want to modify their will to leave the heir that would have received that named asset something else or a percentage of their property instead.
Should I Hire an Attorney if I Need Help Modifying a Will?
As can be seen, there are many reasons and ways in which a will may be modified. Further, the modification of an existing will is often complex and confusing. Thus, before attempting to modify your will, it may be in your best interests to consult with a well qualified and knowledgeable will attorney in your area.
An experienced will attorney will be able to advise you if your will needs to be modified, explain to you how modifying a will is done in your state, as well as help you modify or draft a new will if necessary.