Changing a Will

Keeping your will updated is incredibly important; when major life changes have occurred, there are also potential changes to heirs and beneficiaries.   By not updating your last will and testament, you risk the possibility of your will not reflecting you true wishes.  Below are examples of life events in which it would be wise to consider changing your will:

  • Marriage:  After getting married, you and your spouse should each make a new will.  The majority of states require by law that your spouse be awarded a percentage of your estate should you die (including the states where same-sex marriage is recognized).  If you wish to plan your will differently, make sure you specify this in your will.  Also, adding a spouse to a will can potentially change the percentage of your estate or a certain asset that another heir or beneficiary was formerly meant to receive.
  • Common Law Marriage:  Certain states like Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington, D.C., have Common Law Marriage law. Typically there are numerous requirements that must be met for a common law marriage to be valid. If you and your partner meet the requirements, the law in the state in which you live may treat you and your partner as married for probate purposes.
  • Obtaining a new partner, without marriage:  Your partner will automatically collect assets from your estate only if you are married. Therefore, in order to ensure that your new loved one receives what you would like to leave that partner, it is necessary that you change your will. However, the rules might be different if you are civil union partners in Vermont or Connecticut, reciprocal beneficiaries in Hawaii, or registered domestic partners in California, Maine, or New Jersey.  If you live one of the states just mentioned, make sure to check the state laws.
  • Divorce:  After a divorce, some states will revoke any gift you have left your former spouse in your will.  However, other states will not do this, making it important to change your will after a divorce.  In changing your will post-divorce, you should specify if and what you would like to leave your former spouse.
  • New baby:  When having a new child, you will want to change your will to reflect what assets you would like the baby to receive.  You will also want to specify a guardian for your new baby in the event anything happens to you.  Also, some states give children a portion of your estate upon your death, but not everyone wishes their assets to be distributed in the way that state law specifies.
  • New stepchildren: In many state, stepchildren will not be automatically entitled to inherit a share of your estate.  If you wish for your stepchildren to inherit any part of your estate, you will want to change your will to reflect your wishes.
  • Moving from a community property state to a common law property state:  Each state varies regarding the laws the govern what each spouse owns; these laws generally depend on whether or not a state is a community property state or a common law property state. If you will be moving to a new state, make sure to check if the laws are different than the state in which you currently live in.  If different, you will want to change your will to reflect the new states laws.
  • Changing your mind about heirs:  If you change your mind regarding something specified in your will, make sure to change your will to reflect your new wishes.
  • New or disposed of assets: If you have specified that certain gifts are to go to someone in your will, but you no longer own those properties, you will need to make changes to your will to remove those certain gifts from your will. Also, if you acquire new property, you will need to add that in your will.   However, if you have stated that you plan to leave all or a percentage of your property to your heirs, and what you own changes, you will not be required to make changes to your will.

Ways of changing a will

Making a new will is probably the simplest way to change your will.  It is important that you revoke your old will.  You can do this my writing a statement in the new will that you “revoke all wills and codicils” that you have previously prepared.  To avoid any confusion or potential challenges to the new will, it is best to destroy all previous wills that were prepared.

Another way to change a will is by adding a codicil.  A codicil is like addition or amendment to your will.  A codicil can be used to revoke part of the will or add a new provision.  For a codicil to be valid, it must be signed, dated, and witnessed.

Today, codicils are an out-dated way to make changes to wills, and therefore should be avoided when possible.  Codicils tend to cause confusion and are a way in which a will can be challenged.

Changes to other estate documents

Most property will pass by law to beneficiaries, regardless of what a will states. Property like life insurance and retirement proceeds, joint bank accounts and payable-on-death bank accounts, and stocks registered with a transfer-on-death form will pass directly to specified beneficiaries.  If you would like to change a named beneficiary, change the name on the forms you used to name the original beneficiary.  If you change the named beneficiaries through your will, it will have no effect.

A living trust will also not be affected by the terms of your will. If you would like to change terms of your living trust, then add an amendment to the original trust document. After you have added an amendment, transfer property in or out of a trustee’s name.  Unlike changing a will, you do not need to revoke a trust and create an original one.  For good measure, review your estate and your estate plan once a year in order to determine if changes are necessary.

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