A last will and testament is an important legal document that specifies who will receive a person’s property following their death and who will oversee settling their estate. If you die without a will, your personal effects and assets will be distributed as set forth in your state’s intestacy laws, and you may not like their distribution scheme.
Wills are not meant to function as a “set it and forget it” component of estate planning. Say you’ve signed a will, but now one of the people you’ve named in the document has died. Perhaps your assets have grown considerably, and you haven’t created any kind of plan for their disposition. Another common issue occurs when a child or grandchild who was to receive a portion of your estate is now in trouble with the law, going bankrupt, getting divorced, or simply exhibiting behavior you do not approve of. Leaving them something under your will seems like it may not be such a great idea after all. The question remains in all these scenarios: Can you just tear up the document and start over? The best course of action depends on the extent of the changes you want to make.
Changing a will is not a do-it-yourself project
Can’t you just draw a line through the part(s) of your current will that you do not like, and then write your initials next to the crossed-out text? This is not recommended for several reasons. First, when you signed your will, you probably had two witnesses and a notary also sign the document (these requirements vary from state to state). But your strike-through has no witnesses and no notary, so it may not be deemed an effective change. Without witnesses testifying that you were “of sound mind” at the time of the change, someone who prefers the way the will read before your markup may attempt to challenge the validity of the change.
Also, you may not have dealt with what happens to the property whose disposition you just changed, so it might actually go to someone you had not planned to receive it. In any event, the will would surely wind up in court, where the effect of your strike-out will be argued by attorneys representing different family members. This would come at a great expense to everyone involved and could generate bad feelings between family members that may persist for years.
Using codicils to alter a will
A better option for minor changes is to have an attorney prepare a formal amendment to the original will called a “codicil.” A codicil can add to, remove, or elaborate upon certain provisions already in the will, but it must be formally executed and competency requirements still apply. However, some attorneys find codicils problematic and may refuse to draft them, especially on wills that they did not personally draft.
Revoking a Will by Destroying It
Destroying your original will certainly is possible, but someone may try to probate an existing copy after you die, thereby defeating your wishes. If you wish to revoke your will and default to the state’s intestacy statutes, then you can destroy all copies to obtain this result. However, can you truly account for every single copy that has been created? If not, then it may be worthwhile to pursue a different plan. Keep in mind that state laws for revoking a will through destruction vary. If a legal document isn’t properly destroyed, then the court may still consider it valid.
Drafting a new will
Sometimes even a few minor changes warrant drafting an entirely new will and revoking old versions. Having all current, accurate provisions in one concise document can help minimize confusion, because codicils and additional paperwork run the risk of being misplaced. This can be a costlier option, but starting from scratch provides the opportunity to update the entirety of the will to reflect not only your wishes but also current tax, probate, and property laws.
But does a new will cancel an old will? It does if it’s written with care. A well-drafted will should always include the statement “hereby revoking all prior wills signed by me” or words to that effect. This is to make it clear that your new will is not deemed an amendment to an existing will — it is a complete replacement for any prior wills. Otherwise, the court may decide that the newest copy will only supersede the old one where the two documents conflict.
The lesson in all of this is not to make a quick and easy change to your will in an attempt to save time and money (by avoiding hiring an attorney). You may just wind up causing your family a great deal of stress and financial hardship trying to straighten things out after your death!
