Updating Your Will

Creating your will is only half the work. You must keep it up to date with any changes that will alter your estate plans. You may need to add a few things or make major changes. Only you can do this; your Power of Attorney or Executor cannot. While there are many reasons you would need to alter a will, it is best to review it every 3-5 years even if nothing has changed.

Creating a New Will

The cleanest way to update your will is to create a new one. The process is similar to writing the original will, but can be less complicated since you have likely already done most of the work such as gathering assets and determining beneficiaries, executors, and guardians for your children.

If you are planning to make major changes or additions, it is best to invalidate your current will and start from the beginning. Since there are so many details involved, a new will makes it easier to change how your assets will be distributed unless they are otherwise accounted for in an addendum/codicil to your will. 

Consider creating a new will when any of these events happen.

  1. You get married.
    • Most states entitle spouses to part of your estate, but it is best to add them to specify how much of your estate you want to leave them.
    • It is especially important if you have a same-sex marriage since there are states that will not recognize distribution rights in same-sex marriages. 
  1. You get divorced.
    • Some states automatically revoke anything you leave your ex-spouse in your will upon your divorce, others do not.
    • You will want to specify what you want to leave a former spouse, even if you are not going to leave them anything.
  2. Someone becomes your common law spouse or domestic partner.
    • Although most states entitle spouses to part of your estate, many do not recognize common law marriage, making it important to add them.
    • A domestic partner is not considered a spouse and needs to be added to your will.
  3. You add a new child/grandchild through birth, marriage (stepchild), or adoption as a beneficiary.
    • If you have named your other children/grandchildren in the will, children born or adopted after your will was created will be added in most states even if you do not update your will to include them. You will have to alter your will to name a guardian for them.
    • Grandchildren will not inherit if their parents are alive. They will need to be added if you want to bequeath them inheritance directly. The same is true of nieces and nephews.
    • Stepchildren do not usually have inheritance rights and have to be added
  4. The death of your spouse, domestic partner, children/grandchildren, or other beneficiary.
  5. Your children are no longer minors and you want any inheritance to go directly to them, revise certain bequests, or name them as executors.
  6. You want or need to change beneficiaries, guardians, or executors.
  7. You want to change how your property and/or assets are to be divided, especially if you have gained or lost property and assets or want to adapt your bequeathals to your beneficiaries current situations.
  8. You have other significant changes in your financial situation or estate that affect your beneficiaries, such as beginning to tap into your retirement accounts or large gifts.
    • Your will becomes difficult to execute if your estate no longer reflects what is in it.
    • This can be especially true if you bequeath specific amounts or items rather than a percentage of your estate.
  9. When a beneficiary becomes disabled and requires special care, which is better achieved by moving the intended assets to a trust.
  10. You want to make changes in your estate plan to reduce taxes and/or avoid the probate process.
  11. There are any changes in federal or state laws applicable to your estate that make trusts or other financial planning tools a better option.
  12. You move to another state with a different probate process, inheritance laws, and/or ownership laws that will change your estate plan.
  13. Any major changes in inheritance and/or tax law.

Revoking a Will

Giving away all or your property and assets before you die, although not practical, will essentially revoke your will. However, the primary reason to revoke a will is to replace it with a new one. In order for your new will to take effect you must formally revoke the previous one.

You can do this in the new will.

Include a statement in the introduction/first article using acceptable legal language such as “I hereby revoke any and all wills and codicils heretofore made by me.”

Some states allow you to revoke your will by intentionally destroying it, such as by burning or shredding.

Even if you use your new will or other way to revoke the old one, consider destroying it as well.

Multiple wills can cause confusion, so destruction of your prior will helps prevent debates about which document accurately reflects your wishes.

Altering a Will Using Codicils (Addenda or Additions)

You can’t change your will by simply penciling in additions to the current will or crossing out parts you no longer want. You need to create a new document. It can be a new will, but you can alternatively create a codicil that outlines the changes you want in your current will.

A codicil/addendum is most useful when you want to make small or simple changes. The major reason to use an addendum is these situations is that you can change, replace, or add items to your will without having to redo the entire body of the document. Redoing your will can be a major undertaking if it is particularly long or complex.

A codicil may be the better option if you simply need to make any one of these minor changes:

  • Add or remove an heir or other beneficiary;
  • Add new property/assets or remove any that are sold, given away, or otherwise lost;
  • Decide to leave all or part of your estate to charity;
  • Change your executor or name an alternative executor; and/or
  • Change your child’s guardian.

Aside from avoiding the need for a new will, creating an addendum/codicil has its pros and cons.

Pros

  • They can allow you to make more detailed or specific requests.
  • They can perform other functions, such as messages to your heirs.
  • You can add as many as you need. They will also need updating if circumstances change.
  • Once created, they are easier to manage.

Cons

  1. Codicils have to be in a specific format with specific language which may vary by state and change over time.
  2. It is possible for them to become separated from the will, so take care to keep them in the same folder or file.
  3. Too many codicils can make your will confusing and could end up contradicting each other.
  4. If done incorrectly, they may:
    • Contradict something in the body of the will;
    • Cause more confusion than clarity; and/or
    • Be invalid and leave decisions about the content up to the probate court.
  5. If the addendum is complex or you are unable to include the correct language and format, you will need to get help. In this case, you should consider writing a new will.

Creating a Codicil/Addendum

A codicil has to be done in a similar process to your will: with an opening paragraph, a paragraph with the changes you are making, a closing paragraph, and the proper signatures and statements of yours, the witnesses, and the notary public.

Title and Opening Paragraph

  • This is similar to your will, with the word “codicil” added before the word will.
  • For example, “Codicil to the Last Will and Testament of (Your Name), (date of the signing).” 
  • Add the statements that testify that you are at least 18 years old, are of sound mind, and are not creating the will under duress or undue influence.
  • Make sure to state clearly which part of the will it augments or revises and tailor the language to conform to the laws in your state.

Adding New Codicils to Make Will Changes

After the opening paragraph/introduction, you can add paragraphs as needed.

Detail these changes as specifically as possible, using the various forms and documents available to make it easier to perform some tasks.

You must make sure you have the correct form for the task and fill it out correctly.

You can use a Beneficiary Designation Form to list beneficiaries, account for all of your assets, and be specific about how and when they are to be distributed.

A Personal Property Memorandum can make it easier to be more specific about individual items.

Instead of a statement leaving all your items to one person, you can distribute each piece to different individuals.

Other documents that can record specific instructions include College Investing (529) Plan Accounts, Joint Tenant with Right of Survivorship and Tenants by Entirety accounts, Annuities, Health Savings Account, Transfer on Death account, and Payable on Death account.

In addition to who will receive your assets, you can specify how you wish your assets to be managed after your death.

If any of your assets have monetary value, you may want to instruct your Executor to manage those assets in a specific way.

For example, you may want credits/points/cash values to be redeemed for cash before they are inherited  rather than transferring ownership.

If you have assets that will continue to generate revenue, you may prefer they be transferred to someone who can continue to manage them rather than be sold and the cash being bequeathed.

Closing Paragraphs

After you have included all of the changes to your will, you should insert the following paragraphs.

“In the event that any statement in this Codicil contradicts the terms of my Last Will and Testament dated {insert the date of the will}, the terms of this Codicil shall control. In all other respects I reaffirm and republish my Last Will and Testament dated {insert the date of the will}.”

There should be lines for you, the witnesses, and the notary public to sign and fill in the date.

All states require that the codicil be signed by you in front of witnesses who must watch you and each other sign.

Your state determines the number of witnesses needed and whether it has to be notarized, though it is always a good idea.

There may be certain statements that are required to be in the codicil above the signatures of yours, the witnesses, and the notary. This is where an expert helps.

Changing an Existing Codicil

If you have existing codicils, the process of changing it should include the specific paragraph of the will which is being changed, and the paragraph that will replace it. Repeat this for each paragraph of your will you want to change.

To completely delete a paragraph indicate that “Paragraph ____ of my Last Will and Testament is hereby deleted in its entirety.”

To add a new paragraph, you could write: “My Last Will and Testament is hereby amended to add the following as Paragraph ___,” then include the new paragraph.

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