Changing a Will

When Should I Update My Will?

The following are circumstances in which you, as the testator, should consider changing your will or revoking your will and creating a new one.

Marriage

When you marry, you and your spouse should each create a new will. If you don’t have a will, most states have laws that give a percentage of your estate to your spouse upon your death, called an “intestate share.” However, you may not like the state’s distribution of your assets. Furthermore, when you add your spouse to your will, you can determine a different distribution for other beneficiaries, such as a change in the percentage of your estate or receiving a specific asset. Changing a will should reflect your new wishes for the distribution of your estate.

New Partner Without Marriage

States protect married couples. Without the benefit of marriage or a domestic partnership, your loved one can only inherit your estate if you name them in your will. So, if you find yourself with a new partner, you must change your will to reflect what you want to leave them. However, laws in the states vary, so be sure to check the laws in your state on this issue.

Divorce

Some states revoke any gifts you leave your spouse in your will upon divorce. Other states do not. Changing your will upon divorce is especially important. You will want to specify what you want to leave your former spouse, if anything, and redistribute your estate according to your wishes.

A New Baby or Adopted Child

State laws protect children born or adopted after you make a will. They may receive some portion of your assets upon your death. However, only some people want their property distributed the way the state laws specify. If you welcome a new baby into your family, be sure to change your will to provide for this. And more importantly, be sure to appoint a guardian for the child. The guardian is the person who will care for your child should anything happen to you.

New Stepchildren

While you may consider your stepchildren as part of your family, they do not stand to inherit a share of your property. Therefore, if you want your stepchildren to inherit any assets, specify your wishes by changing your will.

Moving to a New State

Each state has various laws for estates of married persons, especially those between a community property state and a common law property state. Therefore, if you plan to move to a new state, check that state’s laws. If it differs from the one you currently reside in, be sure to change your own will according to the laws of your state of residence.

Changing Your Mind About Beneficiaries

Of course, things happen, causing people to change their minds about how they would like their property distributed. For example, your current will may split your estate among your nieces and nephews. However, if your niece wins the lottery, you may reconsider giving her an equal share and give more to the other nieces and nephews. Or you have a falling out with a nephew; you may want to disinherit them. Changing a will to reflect new circumstances is important.

New or Disposed of Assets

If you leave all or a percentage of your property to your beneficiaries, there is no need to change your will if your property changes. However, if you have willed specific gifts to people in your will and no longer have those gifts, be sure to remove the provision from your will. For example, if, in your will, you leave a classic car to your nephew, but you later sell the car, you don’t want the nephew to sue the estate for the car (or the value of the vehicle). Additionally, when you acquire a new property or item of significant value, you should designate who will receive that property. Additionally, when you acquire new property, be sure to account for that in your will.

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How to Change a Will

The best way to change a will is by revoking a will and make a new one. You can even use state-specific last will and testament forms to revoke your will and create a new one. To do this, simply include a statement in the new will stating that you revoke all previously made wills and codicils. This revocation language is sufficient to revoke any previous wills. Still, it is wise to destroy any previous wills to avoid confusion or challenges to your new will.

However, if you have only a minor change to your will, the other way to change it is with an amendment called a codicil. A codicil is a separate legal document containing modifications to your existing will, including a new provision to add or anything you wish to revoke. A codicil must be dated, signed, and witnessed, just like the formalities required for a will to be valid. In this circumstance, the original will is still a valid will along with the codicil. And the codicil must be safeguarded with your will. Because codicils can be tricky, you may want legal advice from an estate planning attorney.

However, with the rise of online legal forms and services it is easy to draft a new will reflecting your current situation to avoid confusion with amendments and codicils.

Changes Outside of the Will

You may have certain assets or investments that operate outside of a last will and testament. For example, assets with beneficiary designations or transfer on death (TOD) accounts. The will does not affect how these assets pass to beneficiaries.

Assets with Beneficiary Designations

Much of your property passes by law to beneficiaries, despite what your will says. Property such as retirement proceeds, life insurance proceeds, joint bank accounts, payable-on-death bank accounts, and stocks registered with a transfer-on-death form all pass directly to a specified beneficiary. If you change your mind about who the beneficiary should be, change the names using the forms on which you named the original beneficiaries. Do not change the named beneficiaries through your will, for it will have no effect.

Transfer on Death Designations

Other assets that can transfer outside of the will are assets that have transfer-on-death designations. These assets could be real estate, bank accounts, and motor vehicles. The will does not affect the transfer of these assets as they follow the transfer on death or payable on death designations.

If a complication arises with these documents, a probate court will resolve it, so the status of the beneficiaries is relevant. For instance, if the beneficiary of a life insurance policy is dead, and there is no secondary beneficiary, the life insurance proceeds become an estate asset that goes through probate.

To keep these assets out of probate, you must keep your beneficiary designations current. If a beneficiary dies, amend your designations to ensure that family members and loved ones receive these assets.

Living Trusts

Living trusts are also not affected by the terms of your will. If you decide to change the terms of your living trust, add an amendment to the original trust document. Then, transfer property in or out of the trustee’s name, accordingly. You do not need to worry about having to revoke a trust and create an original one, like when changing a will.

Changes to Your Estate Plan

​If you have major life events, you will need to change more than your will to address your current situation. It is easy to do with online estate planning documents.