A person may wish to change his or her will for a variety of reasons, usually when there is a change in circumstances brought on by marriage, divorce, birth or adoption, or a change in a person’s decision regarding the beneficiaries of a will.
Circumstances that May Necessitate Changing a Will
Marriage or Divorce – In most states, a spouse is entitled to claim a statutory percentage of his or her spouse’s estate. A divorce decree or annulment revokes any gift to a former spouse under a will. However, changing a will to reflect these important life changes is advised.
Birth or Adoption – A will should reflect the addition of a new family member. The will should state who will act as guardian of the child and his assets if one or both parents die. As well, the will should indicate if this new family member is to inherit under the will.
Physical Relocation – Changes to a will may be necessary when a person moves to a state that has divorce property division laws that vary from the state in which an original will was drafted. While the majority of the states have equitable property distribution laws, nine have community property laws. Property is distributed differently under each scheme.
Change in Finances or Assets – If a person gains or loses a major asset, this change should be designated in his will. For example, if the testator acquires new property and wants a specific person to receive it, this should be indicated in the will.
Changes in Beneficiaries – If the testator wishes to include or exclude certain beneficiaries, this desire should be reflected in the will. Changes such as the death of a spouse or beneficiary should also be reflected.
Process for Changing a Will
Drafting a New Will or Codicil
In order to change a will, it is best to draft a new will that revokes all previous wills. Or one can make an amendment in the form of a codicil to the will. A codicil must be in writing and comply with the same statutory requirements for the creation of a will. It is generally easier to create a new will that revokes all other prior wills.
Partial Revocation by Physical Act
Some states allow a testator to simply cross out provisions in a will that he wishes to change and to write in new ones. However, the court may have a difficult time discerning the testator’s intent as to how he wishes to dispose of his property. To avoid this dilemma, a testator should draft a codicil or a new will.
Destruction of Prior Wills
When a new will is drafted, all prior wills should be destroyed, burned, or otherwise obliterated to avoid confusion and the expenditure of time and money in probate court.
Battle of the Wills
When two conflicting wills exist, the probate court will attempt to dispose of the estate under both wills. If there is an inconsistency between the two, the more recent will controls. If two wills are completely inconsistent with each other, the newest will controls and the court will deem the prior will revoked.
A person may wish to change his will and may do so by drafting a new will or codicil (amendment) to the will. Changes to a will are usually prompted by changes in a person’s assets or beneficiaries. Care should be taken that a proper change is made to avoid lengthy and costly litigation in probate court.