Changing a Will: When Should You Do It?

Changing a Will: When Should You Do It?

by Ronna L. DeLoe, Esq., November 2015

When you made your will, you probably thought you were finished with it and wouldn’t have to see it again. While many people think that is the case, there are a significant number of situations where updating a will is not only a good idea but is necessary. The following reasons for changing your last will and testament cannot possibly cover every situation where a will should be changed. They do cover the most common reasons for changing your will.

When to Change a Will

Some of the reasons to change a will include the following events:

Marriage. You will want to include your new spouse in your will. While most states usually protect surviving spouses, you may want to leave your spouse your entire estate or a certain percentage of your estate. You can do that by making a new will.

Making a new will is also a good idea for same-sex married couples. While the 2015 Supreme Court decision making same-sex marriages legal should protect you, there may be states that will not recognize distribution rights in same-sex marriages. Better to be safe and revise your will to include your spouse in a same-sex marriage.

Divorce. This is an important reason to revise a will or make a new will. Some states have laws that state your prior last will is invalid if it gives part or all of your estate to your former spouse, but other states may still enforce your will. This means your former spouse could still inherit your estate if you haven’t made a new last will. Because of this, changing wills after divorce is wise.

Common law marriage. If you have a common law marriage, you may want to ensure that your common law spouse is protected by your will. Many states which do not have common law marriages will recognize a common law marriage if it was valid in a state which does recognize common law marriages. To be sure your common law spouse is protected, include him or her in a new will. Check your state’s laws to see whether common law marriages are recognized or allowed.

A new relationship where there is no marriage. If you were to die without including your domestic partner in your will, your partner will not inherit anything. You can amend a willso that your partner is included in your estate plan. Both of you should consider updating your wills.

A new baby. It’s important to update a will upon the birth or adoption of a new baby. You may want the child to inherit a certain percentage of your estate. Additionally, you can name the guardians for your child in a new will.

Stepchildren. Stepchildren usually do not have inheritance rights. To ensure they receive a portion of your estate, make a new will to include them.

Death of a child or spouse. If one of your heirs predeceases you, update your will to provide for different beneficiaries or for a different percentage of the estate to surviving heirs.

Adding a new heir. If you want to add a new heir such as a grandchild or a favorite niece, you need to change your will.

A change of heart about heirs. If you decide to change your heir(s), you need a new will.

Moving to a new state where distribution laws are different. If you move from a community property state to a common law property state, or vice versa, your estate will be subject to different laws. Consider changing your will.

Change in value of the estate. If you get new property, obtain more assets, or lose property or assets, consider revising your will.

Leaving assets to charity. If you decide to leave all or part of your estate to charity, change your will to reflect that intent.

Changing guardians. If you decide to change guardians, you need to update your will.

How to Change a Will

Often the best way to update your will is to make a new one to replace the old one. There must be a statement in the new will whereby you revoke your old will. A statement such as, “I hereby revoke any and all wills and codicils heretofore made by me,” or something similar is an effective way to revoke your old will.

While you can hire an attorney to do a new will for you from start to finish, there are alternate ways of doing a will. You can get will forms from online companies, which will prepare an online will for you based on the information you provide.

Another way to change a will is by adding a codicil to a will. A codicil is a document that is added to your will when the changes are minor and when the will is lengthy or extremely detailed. If you are going to use a codicil, you should have an attorney prepare it. It has to be in a specific format. If done incorrectly, it will be invalid. Most attorneys advise against using codicils because they often cause confusion about what you intended.

Can a Power of Attorney Change a Will?

If you are the attorney in fact named in a deceased person’s power of attorney, you cannot change the deceased’s will. A power of attorney ends upon the death of the testator (the person who signed the will and the power of attorney).

Can an Executor Change a Will?

The executor is the person designated by the testator to carry out the provisions of the will such as paying bills and closing bank accounts. The executor cannot change the terms of the will. If the terms of the will are clear, the executor is bound to follow them. If the will gives the executor some discretion in carrying out his duties, then the executor will be allowed to make good-faith decisions to protect the estate’s assets.

If any of these situations apply to you or if you have questions about your estate, consult a wills and estates attorney as soon as possible.

LegalZoom can help you create a new will. You can get started now by answering a few questions about your estate using our online questionnaire. LegalZoom also offers an estate planning bundle that will help you save money by providing all the necessary estate planning documents you need along with independent attorney advice for one low price.