Last Will & Testament With Added Distribution Wishes

by John Cromwell

The purpose of a will is to ensure that your property is distributed in accordance with the your final wishes. However, conditions can change such that a person may want to change how his property is distributed. Examples of conditions that require a change to a will include divorces, marriages and birth of children. To alter or add new distribution wishes to a will, you can either amend the will through a codicil or rescind the prior will and draft a new one.

Uniform Probate Code

There is no unified standard for probate law because probate is a function of state law. The Uniform Probate Code (UPC) comes the closest to providing a unified framework. The UPC has been approved by the American Bar Association and has been used as a template by many states in developing their own probate standards. Seventeen states have gone farther and adopted the UPC in its entirety. If you want to make changes to your own will, however, you must review the standards specific to your state or consult with a local attorney.

Will Drafting Requirements

For a will to be admissible, it needs to comply with the drafting requirements of the state. It's possible, however, to outline some conditions that are generally true in many places. For example, typically a will can only be drafted by someone over 18 years of age who is mentally competent. The will must be in writing and signed. Generally, a will must be witnessed either by two individuals or a notary public. If two individuals witnessed the will, they must also sign the document; if a notary public serves as witness, she must notarize it. A will may not need to be witnessed if the drafter hand writes the will and his writing can be identified as his own.

Codicils

A codicil is a document that a will drafter creates to supplement his will. For a codicil to be valid, it must be drafted using the same state standards that applied to his will. If the codicil is valid, it will be used, along with the will, during the probate process to distribute the decedent’s property. A codicil can subtract clauses, revoke distributions or modify specific terms. When drafting a codicil, best practices suggest you specifically reference which sections of the will are to be altered by the amendment. For example, if you had another child, you could draft a codicil to include her in your will. The codicil would identify the specific sections mentioning the children's share of the estate and amend those sections to include the new child.

Revoking and Replacing Wills

If circumstances have changed to such an extent that numerous, significant changes need to be made to the will, it may be best to revoke the prior will and prepare a new one. Although laws vary among states, one way to revoke a will under the UPC is to draft a new will. By drafting a new will that completely disposes of the decedent’s estate, the presumption will be the old will has been revoked. The only way to rebut that presumption is to present clear and convincing evidence the later will is not meant to revoke the earlier version.