How to Draft a Will After Remarriage & Children

by John Cromwell

When you get remarried, you need to adjust your will to reflect the changes in your life. Things can get complicated quickly when drafting a new will because you may want your estate to provide for your new spouse and children as well as your children from a prior marriage. The requirements for preparing a will vary by state, but there are some consistent standards that generally apply to all wills.

Step 1

Revoke the prior will. Instead of trying to amend the prior will, it is best to start from the beginning. A will can be revoked by physically destroying it or writing an attachment to the will saying that it is no longer valid.

Step 2

Review your property to determine which of your beneficiaries should get which of your assets. You need to consider which of your assets you want to go to your new spouse, your children with your new spouse and the children from your prior marriage. For example, you may want to leave your home to your current spouse and your children with her, but also set aside money and other assets to the children from your prior marriage.

Step 3

Consider including a provision creating a QTIP Trust. A QTIP trust allows your spouse to use your property for the remainder of her life, but when she dies all of the property in the trust goes to your children. If written correctly, a QTIP trust can provide some estate tax benefits as well. Given the complexity of creating a QTIP trust, you may want to consider consulting with an attorney to help you include the appropriate language in your will.

Step 4

Consider including a clause creating a testamentary trust for the children from your prior marriage. A testamentary trust is a good idea when the beneficiaries are children who are too young or inexperienced to handle the assets you wish to leave them. With a testamentary trust, the property is controlled and maintained by a trustee who uses the property for the care and support of the children beneficiaries. By naming a trustee other than your former spouse, you can provide support for your children without enriching your former spouse. You can create the trust by writing a clause similar to: “The following assets are given to John Smith in trust for my children, for their health, education, maintenance and support.”

Step 5

Draft the new will. The will needs to be written down and recorded in clear and concise language. Be sure to clearly identify which assets go to which person and under which circumstances the property is to be transferred.

Step 6

Execute the will. The requirement for executing a will varies, so be sure to check the probate code of your state. Generally, to execute a will you must sign it in the presence of two witnesses. The witnesses also must sign the will.