The Legality of Second Wills

by Kristin Shea
Periodically review and update your will to reflect life changes.

Periodically review and update your will to reflect life changes.

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Your financial situation and devotion to loved ones and charitable organizations may change over time. The acquisition or loss of assets can alter your financial worth, and divorces, marriages, births, deaths and loyalties can cause major shifts. Your will may not reflect your intentions in light of these life changes. You can address these life changes by periodically reviewing and updating your will.

Effective Date of Will

Your will becomes effective at the time of your death. Until this time, you can change, revoke or rewrite your will. If you choose to rewrite, a valid rewritten will supersedes all prior wills. If a court determines that the rewritten will is invalid, it typically probates the previous will unless the testator has expressly revoked that will or the will is otherwise found invalid.

Language

You must follow state law when writing the new will. The new will should contain the date it is executed, and language that expressly revokes all previous wills. The American Bar Association, or ABA, cautions that without this express language, the court will likely rule that the new will only revokes terms in conflict with the previous will. To avoid questions, the ABA advises writing on an each page of an unsigned copy of the previous will, “revoked, superseded by will dated ____.”

Laws That Cover Life Changes

In some states, if you do not expressly disinherit a child born after the date when your will was executed, the court might determine that disinheritance was unintentional and award the child a portion of the estate. In some states, divorce automatically revokes any provision that applies to your former spouse, while in other states, divorce revokes the whole will. Check your state’s laws to determine how your life changes can affect your will. Regardless, updating your will is still the best way to ensure that your intentions are carried out.

Codicils

Although substantial life changes might require a total rewrite, minor changes might only warrant an amendment of your will, called a codicil. Your codicil should refer to the will it is amending. The same legal requirements apply to your codicil as your will, including that the codicil must be written, signed, dated and witnessed according to the laws of your state.