Revoking, Challenging or Changing a Will

Your last will and testament is the legal document you leave behind that instructs how your property and your debts should be handled after your death. Understandably, many people assume that once their will is drafted and signed, it is “good to go" until they pass away. This is only sometimes true.

As years go by, changes in your life can impact your desires about how you want your property distributed. Failure to address these changes can convert it from a document expressing your desires into one that works against them. You should keep your will up-to-date.

This article provides basic information on updating and revoking your will. It also discusses how a will can be challenged and invalidated in case you don't update it properly.

Common Reasons for Updating Your Will

If you have a will, then you probably already understand the importance of having this kind of legal document in place. It might address things like how your property should be divided among your loved ones, how non-marital property should be distributed to a surviving spouse, and who will be responsible for your minor children in the event of your death. You might even have separate documents in place as part of your estate plan, such as one that explains how you would like to receive your end-of-life healthcare prior to death.

Of course, once your will is drafted and signed, you may still have many more years to live. And as life passes, important developments may mean you need to update the instructions in your will. Remember, courts interpreting your will tend to stick very closely to the text you leave behind. If you don't update your will, courts may end up undermining your actual wishes by applying old instructions to new circumstances.

So, when should you update your will? Below are some common scenarios where an update might be appropriate:

  1. Getting Married. If you do not have a will, state law will substitute its own plan for your estate. These laws are called "intestacy laws." Intestacy laws vary significantly from state to state. Generally, your surviving spouse takes precedence, followed by your children. Note that if you have a valid will in place when you die and it was created before the marriage, intestacy laws won't come into play. As a result, you may not leave as much as you would like to your surviving spouse.
  2. Having or Adopting a Child. There are two reasons you should update your will after the birth or adoption of a child. First, as explained above, if you do not have a will, state intestacy laws will act as a default. If you already have a valid will that does not mention your new child, you might unintentionally disinherit your child. Second, you can name a guardian in your will for your minor children in the event of your early death. This opportunity to ensure that your child is well-cared for if you die should not be missed.
  3. Getting Divorced. When you get divorced, chances are your estate will radically change. You should evaluate what property you receive and adjust your will accordingly. If you had any children during the marriage, you should also consider how they should be provided for.
  4. Remarriage and Stepchildren. If you remarry, then you should again revise your will to provide for your new spouse. If you want to leave something for your stepchildren, this should also be reflected in your will. Note that intestacy laws do not normally provide for stepchildren, only biological or adopted children.
  5. Personal Representative Dies. A personal representative (in some states they are called "executors") is the person who will carry out your will's instructions when you die. If they die before you, a court will appoint one for you. The court's choice may or may not have pleased you in life.
  6. Heir or Beneficiary Dies. An heir is someone who inherits based on their descent from you. A beneficiary is someone who you select to inherit in your will. Of course, if an heir or beneficiary listed in your will dies before you, they cannot inherit your property (though their own heirs and beneficiaries might). If you see this as a problem, you should consider reallocating their inheritance to someone else in your will.
  7. Relationships Deteriorate. Close bonds with family members and friends might last a lifetime. Of course, some do not. Such developments may impact how you want your estate to be handled when you die. Bear this in mind and adjust your will accordingly as time goes by.
  8. Real Estate Acquisition. Unlike money, real estate cannot be easily divided. Therefore, if you want to keep certain real property intact, or if you simply want a specific person to have an entire piece of real property to themselves, you should address this in your will. Otherwise, your property may end up being partitioned or sold for easily distributable cash.
  9. Financial Windfall. Whether you win the lottery or receive a large inheritance yourself, you should update your will anytime you receive a significant financial windfall. Make sure the text of your will keeps up with your good fortune.

These are just a few of the various scenarios in which you should update your will. In real life, they often overlap. If you do not address them properly, you may ultimately undermine your own intentions.

How to Update or Revoke Your Will

This section discusses three ways to adjust your estate plan. In all cases, it is very important to use crystal clear language that specifies what is changing and what is not, as well as which documents are being changed. Any update of a current will or revocation of previous wills should be unmistakable. Remember, poorly drafted language often leads to confusion.

1. Executing a New Will

The most obvious way to change a will is to simply create a new one. This method is the most comprehensive and is most sensible when significant changes occur in your life.

New wills are automatically presumed to override old ones. To make sure your updated will is enforced, it should include clear language stating that it is meant to completely void and override any and all earlier wills.

You should consider numbering the individual pages in your will so you can make sure that pages don't disappear when it comes time for probate. Also, consider dating and initialing each page at the corner to show that each one is authentic.

2. Codicil

Whereas a new will replaces old ones, a codicil merely updates a current will. A codicil is a supplemental document that is attached to an already existing will. It can modify, explain, or add to the provisions of your will.

Codicils are useful for minor changes or additions. Just as when drafting a new will, codicils should use clear and unmistakable language.

3. Personal Property Memorandum

personal property memorandum is one of the most detailed ways of making changes to your will and is useful if you have a long list of tangible personal property (property you can touch that is not land) you want to leave to specific people. For example, you can list a special piece of jewelry to go to your daughter and a valuable piece of art to go to your youngest nephew. Note that you cannot list intellectual property because it is considered “intangible."

When Can and Should a Will Be Challenged?

The validity of a will can be challenged for a number of reasons. For example, if the person who made it (known as the “testator") was manipulated or coerced into signing it, the will can be challenged because it was tainted by “undue influence." Similarly, a will may be invalid if the testator was tricked into signing it. Validity may also be challenged if the document or signature was forged.

Further, the testator must have been of “sound mind" when they signed it. This simply means that they must have been capable of fully understanding the purpose and consequences of their will.

Probate is the process of evaluating the validity of a will. If the probate court finds a will to be invalid for any of these reasons, intestacy laws will be applied as a default.

As mentioned above, will contests often arise when there are multiple wills and it is not clear which one should be enforced. More recent wills are presumed to replace prior wills. However, missing dates, missing pages, and vague language can create delays and added expenses during probate.

These problems are easily avoided by careful drafting and storage of your will. Ideally, old wills and their copies should be destroyed. Further, be sure to keep the original copy of your most current will in a safe place. An original document carries the most weight when a dispute arises and is most likely to be enforced.

How a Lawyer Can Help

An estate lawyer can answer further questions about revoking your will. They can also help you to update your will to make sure it suits your estate and reflects your current needs. Finally, they can provide legal advice in the event you think there is good reason to challenge a will.

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