How to Update Wills

By Lee Hall, J.D.

How to Update Wills

By Lee Hall, J.D.

Each state has a set of statutes outlining the correct way to create wills and to update an existing will to fit changed circumstances.

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Therefore, should you need to modify an existing will, always turn to state law for direction. A valid will adheres to the requirements set out by the testator's state of residence.

Here are some key tips, applicable no matter where you live.

1. Know when it's time to update a will.

Unless you keep your will updated to reflect your current circumstances, state law could decide how to distribute your wealth after you die.

Therefore, it's important to check and update your will regularly. If you have moved from one state to another or the relevant laws of your state have changed, it is a good idea to update your will. Other reasons for updating a will could involve a purchase or sale of a home or business, the acquisition of important assets, or a significant change in your financial situation.

2. Use a codicil for minor updates.

A codicil is a document intended to amend a will. It does not revoke an existing will. Codicils should only serve to declare specific, usually minor, updates.

The testator (maker of the will) should keep any codicils with the will itself, and the codicil should include a clear reference to the will.

Check your state laws to know what formalities a codicil must follow. The laws of the various states generally require:

  • The competence of the testator and the testator's freedom from undue influence when making the codicil
  • The testator's signature and the date
  • Witnesses, without any financial interest, who together sign the codicil and observe the testator signing it
  • A notary public's stamp (in some states) to verify the signatures of the testator and witnesses and facilitate the codicil's acceptance into probate

This list is not exhaustive. Remember to refer to the laws of your state.

3. Determine if you should create a separate list for tangible items.

Some states allow you to keep a dated and signed tangible personal property memorandum, which is a separate writing that bequeaths personal items—often heirlooms, jewels, art and antiques, and vehicles, but never real estate. In some states, the testator may create, update, or modify this document at any time. Keep this signed list with the will and expressly incorporate it by its title into your will so that the executor who reads your will can see that this separate writing exists.

Note that some states see such a document only as a list of precatory inheritances. That is, the list merely expresses a hope or intention for the transfer of assets as indicated. In this case, an executor will normally try to follow the nonbinding intent of the testator.

To update the document, write "revoked" on its pages and date the revocation. Then, include the new document with the will. Check your state's law to learn if you must amend your will to incorporate the new list.

4. Avoid changes in your intentions to pass on tangible property that cause ademptions in your will.

Say you own a painting by Mark Rothko, and you want it to go to Chris, your grandchild. If you specify that painting but trade it for another, Chris gets no painting. Solve this in advance by having your will declare that you leave the Mark Rothko painting to your grandchild Chris, but that if you don't still own the Rothko at your death, Chris may choose a painting you still own.

 

Major life changes mean the time has come to make a new will. Perhaps you have lost a friend, married, or gave birth. Perhaps someone to whom you were leaving an inheritance has died before you. Statutes pertaining to wills might have changed. Revisit your will yearly. As life brings its inevitable changes, change your will accordingly and be sure your current will expressly revokes prior wills and codicils.

Having a will is important. Keeping it updated is important, too. We never know what tomorrow holds, so be sure your will is current today.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.