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Changing Your Will or Making a New Will

Why should I change my will?

Changing your will may be necessary if your circumstances change. You should review and change your will on a regular basis in order to keep it current. Many people these days make wills. But not all of them realize that it needs to be modified whenever something changes in their life, most often with their finances or relationships. It is wise to update or revoke your will in light of any new circumstances. By doing so your family and friends avoid any unnecessary problems when your estate is being settled.

When should I consider changing my will?

Other than a simple change of mind, there are many events that may prompt you to change your will. Common reasons for changing are will are:

Life-changing events

  • Marriage
  • Divorce
  • Birth or adoption of a child
  • Relocation to a new state or country. You should change the will so it conforms to that region’s laws to avoid delays in probating it.

Changing financial situation or assets

  • Inheritance of a large amount of money or other asset
  • Purchase or acquisition of a new home or car, or other asset
  • Purchase or sale of a business
  • Sale or destruction of an asset that you included in your will

Changing your original beneficiaries

  • Death of a spouse or other beneficiary
  • Relationship with a beneficiary takes a turn for the worse
  • Desire to include new beneficiaries

In the event of a divorce, the law automatically revokes any provisions in your will that favor your ex-spouse. Regardless, you still need to update your will because if you do not redirect the property originally devised to your ex-spouse to another beneficiary, then that property will either fall into the residuary clause, or if there is none, it will pass to your intestate heirs.

How can I change my will?

Changing your will can be done in one of two ways. You can revoke your current will and write a new one. Or you can amend your existing will by creating a codicil. A codicil is a formal supplement to your will and must conform to the same requirements for executing a will (must be written and signed by you and your witnesses).

TIP: If you execute a codicil to your will, make sure that you store it with your will. If the changes in your codicil are extensive, you should consider revoking the old will and starting over with a new one. This will avoid any confusion when your will goes to probate and will insure that you don’t make any mistakes.

How do I revoke my will?

If you revoke your will, it is legally dead – as if you never created it. You can revoke your will by a later writing (e.g., a new will or codicil that is totally inconsistent with your previous will or that includes a statement that you intend to revoke your previous will) or by physically destroying it (burning, canceling, tearing, or obliterating it). If you physically destroy your will, make sure you destroy the entire will; otherwise you risk an ineffective revocation. For example, if you want to write “void” on your will, write it across the face of every page, not just the first page.

TIP: Make sure that your new will includes a statement indicating your intent to revoke the old will. It is usually sufficient to state something to effect that you -revoke all prior wills and codicils.’ This will protect your intentions in the event that you forgot to destroy any originals or copies of prior wills or codicils.

My attorney keeps my will in his office for safekeeping. Can I call him and ask him to rip it up since I want to create a new one?

You can have your attorney destroy the will for you, but he must do it in your presence. If you are on the phone with him when he does it, the revocation is ineffective and the will is still valid.

What happens if my revocation is ineffective?

If you do not properly revoke your old will, it remains alive and it will go to probate along with your new will. In that event, the court will try to dispose of your estate pursuant to the terms of both wills, and if there is an inconsistency between the two, the terms of the most recent will take precedence. All the remaining provisions of the old will still have effect, provided they do not conflict with the new will!

EXAMPLE: Assume you have a will that, among other gifts, devises your car to your mother and your home to your sister. You later write a new will that devises the car to your father, but you don’t mention the home and you never revoke the old will. Both wills are valid and both will be probated. Because there is an inconsistency between the two wills with respect to who gets your car, the most recent will controls and it passes to your father. The home will pass to your sister under the first will even if you didn’t want her to receive it.

Tip: If your new will is completely inconsistent with the prior will, then you don’t need to worry about this happening – the prior will is considered to be revoked. This makes sense if you think about it ‘ the second will controls any inconsistencies between the two wills, so if the two wills are entirely inconsistent, then the second one controls, revoking the prior will! However, it’s best to err on side of caution and destroy any unwanted wills.

Writing a new will seems like too much work. Can I just cross out the provision I don’t like and insert a new one on my existing will?

Changing your will this way is called a “partial revocation by physical act,” and although it is permitted in some states, it’s not recommended. What if you have so many changes that you are left with a will with a lot of crossed-out provisions? How is the court to know whether you intended to revoke the entire will or just portions of it? And what if your new clauses are hard to read or understand? At a minimum, you should make the change by executing a codicil to the will. And if your changes are significant, then you would do your beneficiaries a favor by rewriting your will. It is more time-consuming but you ensure that there will be no problems when the will is probated.

After having executed my will, I realized that I forgot to give away my new computer. Can I just add that clause to the end of the will?

No. Changing your will this way will be ineffective because it was not present when the will was executed. If you add anything new to the will, you must re-execute it for the new material to be valid. In other words, you and your witnesses must sign it again.

My mother used to keep her will in her desk drawer, but after her death we could not find it there. How can we admit its contents to probate?

You can’t. If the will can’t be found and it was last seen in your mother’s possession, then the court will assume that she revoked it. Also, if it is found in a damaged condition (e.g., torn into pieces), it is presumed that she damaged it with the intent to revoke it; so again, it will be invalid. However, if you can prove that your mother did not revoke, then the court will accept proof of the will’s contents by carbon copy or photocopy, or by the testimony of a person who knew its contents. One way to prove this is if you have evidence that a third party (perhaps someone who was left out of the will) had access to the will and destroyed or damaged it.

I revoked my 2000 will through a clause in the will that I executed in 2005. Now I have decided to revoke my 2005 will because I want to reinstate the terms of the 2000 will. Can I just tear up the 2005 will and do nothing more?

No. The 2000 will was revoked and remains revoked. You must take affirmative action if you want to revive its terms, and you have three options. First, you can create a new will that contains the same terms as the 2000 will. Second, you can properly re-execute the 2000 will (re-date it and have it signed by you and your witnesses). Third, you can execute a codicil that states your intent to revive the 2000 will. And be sure to completely revoke the 2005 will!

A few years ago, I executed a codicil to my will that changed my executor. I have now decided that I feel more comfortable with my original choice, so I want to revoke the codicil. Does this revalidate my original designation?

Yes. If you create a codicil to your will and then later revoke the codicil, the will is still valid and the clauses in the will that were changed by the codicil now take their original effect.

I executed a will a few years ago, and then subsequently executed a codicil that amended a portion of the will. As I review my documents, I realized that I forgot to sign the will. Is it valid?

Standing alone, the will is invalid because without your signature it is not properly executed. However, if you properly executed your codicil (in writing and signed by you and two witnesses), then it validates your previously invalid will as of the date of the codicil. Therefore, your will is considered to be valid.

Changing Your Will or Making a New Will

Read a FindLaw article about changing your will.