Revoking, Challenging, or Changing a Will

Your last will and testament is the legal document laying out how to deal with your property and debts after your death. Many assume that once they draft and sign their will, it is good to go until they die. This is only sometimes true.

Life changes can affect how you want your property distributed as the years pass. Failure to address these changes can convert your original will into a document that works against you. It's critical to keep your will up to date.

If you die without a will, state probate laws say that the rules of intestate succession apply. The distribution of your property would proceed according to rules that may not necessarily align with your wishes. Most people would do well to execute a will and make sure it stays updated.

This article provides basic information on updating and revoking your will. It also discusses how a will can face a challenge if you don't update it properly.

Common Reasons for Updating Your Will

If you have a will, you probably understand the importance of this kind of estate planning document. It might provide directives such as:

• How to divide property among your loved ones
• How to distribute property to a surviving spouse
• How to distribute community property
• Who will be responsible for your children under age 18 if you die

Once you've written and signed your will, you may still have many more years to live. Major developments could call for you to update your will.

Remember, courts interpreting your will adhere closely to the text. If you don't update your will, they may undermine your wishes. A court could apply outdated instructions to new circumstances if you fail to execute an updated document.

So when should you update your will? Below are some common scenarios where an update might be appropriate:

• Getting married: If you do not have a will, state law will substitute its own plan for your estate. These rules, called "intestacy laws," vary significantly from state to state. Generally, your surviving spouse takes precedence, followed by your children. Intestacy laws won't come into play if you have a valid will in place that you created before the marriage. As a result, you may not leave as much as you would like to your surviving spouse.
• Having or adopting a child: There are two reasons you should update your will after the birth or adoption of a child. First, as explained above, if you do not have a will, state intestacy laws will act as a default. You might unintentionally disinherit your child if you already have a valid will that does not mention your new child. Second, you can name a guardian in your will for your minor children.
• Getting divorced: When you end a marriage, chances are your estate will radically change. You should evaluate what property you receive and adjust your will accordingly. Your former spouse might now have control over assets that you once owned. If you had any children during the marriage, you should also consider how to provide for them.
• Remarriage and stepchildren: If you remarry, you should revise your will to provide for your new spouse. If you want to leave something for your stepchildren, you should make this clear in your will. Intestacy laws do not typically provide for stepchildren, only biological or adopted children.
• Personal representative dies: A personal representative (in some states, they are called "executors") is the person who will carry out your will's instructions when you die. If they die before you, a court will appoint one for you. Be sure to update your personal representative in your will if any changes occur to the status of the one you've named.
• Heir or beneficiary dies: An heir is someone who inherits based on their descent from you. A beneficiary is someone whom you select to inherit in your will. If an heir or beneficiary listed in your will dies before you, consider reallocating their inheritance to someone else in your will. The deceased heir or beneficiary cannot inherit your property, though their own heirs and beneficiaries might.
• Relationships deteriorate: Close bonds with family members and friends might last a lifetime. However, some do not. Relational issues that affect how you want your estate handled after you die may arise. Bear this in mind, and adjust your will accordingly as time goes by.
• Real estate acquisition: Unlike money, you cannot easily divide real estate. You can specify in your will if you want to keep certain real property intact. If you want someone to have an entire piece of property, you should address this in your will. Otherwise, your property may be partitioned or sold for cash, which is easier to distribute. Alternatively, you may title the property as belonging to joint owners with a right of survivorship. This means that real estate passes by operation of law at the decedent's death. Such ownership rights do not rely on the will.
• Financial windfall: Whether you win the lottery or receive a large inheritance, you should update your will. Any time you get a significant windfall, ensure the text of your will keeps up with any major change in your financial position. These increased funds may affect how you would like to distribute your estate.

These are just a few scenarios in which you should update your will. In real life, they often overlap. If you do not address them properly, you may ultimately undermine your own intentions.

How to Update or Revoke Your Will

This section discusses ways to adjust your estate plan. It's critical to use precise language that specifies the changes. Any update of a current will or revocation of previous wills should be unmistakable. Remember, poorly drafted language often leads to confusion.

Executing a New Will

The most obvious way to change a will is to create a new one. This method is the most comprehensive and sensible when significant changes occur.

New wills are automatically presumed to override old ones. To ensure your updated will is enforced, it should include clear language stating that it seeks to void and override any earlier wills.

Consider numbering the individual pages in your will to ensure that pages don't disappear when it comes time for probate. Also, consider dating and initialing each page at the corner to show the authenticity of each page.

Codicil

Whereas a new will replaces any old ones, a codicil merely updates a current will. A codicil is a supplemental document attached to an existing will. It can modify, explain, or add to the provisions of your will.

Codicils are useful for minor changes or additions. Just as when drafting a new will, codicils should use clear and unmistakable language.

Personal Property Memorandum

A personal property memorandum is one of the most detailed ways to change your will. It's helpful if you have a long list of tangible personal property. That means the property you can touch but does not include land.

For example, you can list a special piece of jewelry to go to your daughter and a valuable piece of art to go to your youngest nephew. Note that you cannot list intellectual property because it is considered intangible.

When Can You Challenge a Will?

A person can challenge a will for several reasons. The person who makes a will is known as the testator. If a testator was manipulated or coerced into signing, a will is subject to a challenge. The challenging party can claim that the will was tainted by undue influence. Similarly, a will may be invalid if someone tricked the testator into signing it. If someone forges the document or signature, the will is subject to a challenge.

The testator must have been of sound mind when they signed the will. This means that they must have been capable of fully understanding the purpose and consequences of their will.

Probate is the process of evaluating the validity of a will. Intestacy laws apply if the probate court determines that a will is invalid.

As mentioned above, will contests often arise if there are multiple wills, but it is unclear which one should be enforced. More recent wills are presumed to replace prior wills. However, missing dates, missing pages, and vague language can create delays and added expenses during probate.

Careful drafting can eliminate such problems. The best practice is to destroy old wills and copies. Further, be sure to keep the original copy of your most current will in a safe place. An original document carries the most weight when a dispute arises and is most likely to be enforced.

Other Estate Planning Documents

You may have separate documents as part of your estate plan. Additional estate planning documents can also be critical for you and your loved ones. These can include:

• Power of attorney, which includes healthcare power of attorney or durable power of attorney
• Living will
• Revocable trust

With these documents in place, your loved ones have guidance during your lifetime. Your estate planning choices in a will or beneficiary designations can smooth the probate process. Careful planning can even eliminate the probate process. It's important to keep these documents up to date as well.

How a Lawyer Can Help

An estate planning lawyer can answer further questions about revoking your will. An estate planning attorney can also help you update your will to ensure it suits your estate and reflects your current needs. Finally, they can provide legal advice if you think there is a good reason to challenge a will.

So, when should you update your will? Below are some common scenarios where an update might be appropriate:

1. Getting Married. If you do not have a will, state law will substitute its own plan for your estate. These laws are called "intestacy laws." Intestacy laws vary significantly from state to state. Generally, your surviving spouse takes precedence, followed by your children. Note that if you have a valid will in place when you die and it was created before the marriage, intestacy laws won't come into play. As a result, you may not leave as much as you would like to your surviving spouse.
2. Having or Adopting a Child. There are two reasons you should update your will after the birth or adoption of a child. First, as explained above, if you do not have a will, state intestacy laws will act as a default. If you already have a valid will that does not mention your new child, you might unintentionally disinherit your child. Second, you can name a guardian in your will for your minor children in the event of your early death. This opportunity to ensure that your child is well-cared for if you die should not be missed.
3. Getting Divorced. When you get divorced, chances are your estate will radically change. You should evaluate what property you receive and adjust your will accordingly. If you had any children during the marriage, you should also consider how they should be provided for.
4. Remarriage and Stepchildren. If you remarry, then you should again revise your will to provide for your new spouse. If you want to leave something for your stepchildren, this should also be reflected in your will. Note that intestacy laws do not normally provide for stepchildren, only biological or adopted children.
5. Personal Representative Dies. A personal representative (in some states they are called "executors") is the person who will carry out your will's instructions when you die. If they die before you, a court will appoint one for you. The court's choice may or may not have pleased you in life.
6. Heir or Beneficiary Dies. An heir is someone who inherits based on their descent from you. A beneficiary is someone who you select to inherit in your will. Of course, if an heir or beneficiary listed in your will dies before you, they cannot inherit your property (though their own heirs and beneficiaries might). If you see this as a problem, you should consider reallocating their inheritance to someone else in your will.
7. Relationships Deteriorate. Close bonds with family members and friends might last a lifetime. Of course, some do not. Such developments may impact how you want your estate to be handled when you die. Bear this in mind and adjust your will accordingly as time goes by.
8. Real Estate Acquisition. Unlike money, real estate cannot be easily divided. Therefore, if you want to keep certain real property intact, or if you simply want a specific person to have an entire piece of real property to themselves, you should address this in your will. Otherwise, your property may end up being partitioned or sold for easily distributable cash.
9. Financial Windfall. Whether you win the lottery or receive a large inheritance yourself, you should update your will anytime you receive a significant financial windfall. Make sure the text of your will keeps up with your good fortune.

These are just a few of the various scenarios in which you should update your will. In real life, they often overlap. If you do not address them properly, you may ultimately undermine your own intentions.

How to Update or Revoke Your Will

This section discusses three ways to adjust your estate plan. In all cases, it is very important to use crystal clear language that specifies what is changing and what is not, as well as which documents are being changed. Any update of a current will or revocation of previous wills should be unmistakable. Remember, poorly drafted language often leads to confusion.

1. Executing a New Will

The most obvious way to change a will is to simply create a new one. This method is the most comprehensive and is most sensible when significant changes occur in your life.

New wills are automatically presumed to override old ones. To make sure your updated will is enforced, it should include clear language stating that it is meant to completely void and override any and all earlier wills.

You should consider numbering the individual pages in your will so you can make sure that pages don't disappear when it comes time for probate. Also, consider dating and initialing each page at the corner to show that each one is authentic.

2. Codicil

Whereas a new will replaces old ones, a codicil merely updates a current will. A codicil is a supplemental document that is attached to an already existing will. It can modify, explain, or add to the provisions of your will.

Codicils are useful for minor changes or additions. Just as when drafting a new will, codicils should use clear and unmistakable language.

3. Personal Property Memorandum

A personal property memorandum is one of the most detailed ways of making changes to your will and is useful if you have a long list of tangible personal property (property you can touch that is not land) you want to leave to specific people. For example, you can list a special piece of jewelry to go to your daughter and a valuable piece of art to go to your youngest nephew. Note that you cannot list intellectual property because it is considered “intangible."

When Can and Should a Will Be Challenged?

The validity of a will can be challenged for a number of reasons. For example, if the person who made it (known as the “testator") was manipulated or coerced into signing it, the will can be challenged because it was tainted by “undue influence." Similarly, a will may be invalid if the testator was tricked into signing it. Validity may also be challenged if the document or signature was forged.

Further, the testator must have been of “sound mind" when they signed it. This simply means that they must have been capable of fully understanding the purpose and consequences of their will.

Probate is the process of evaluating the validity of a will. If the probate court finds a will to be invalid for any of these reasons, intestacy laws will be applied as a default.

As mentioned above, will contests often arise when there are multiple wills and it is not clear which one should be enforced. More recent wills are presumed to replace prior wills. However, missing dates, missing pages, and vague language can create delays and added expenses during probate.

These problems are easily avoided by careful drafting and storage of your will. Ideally, old wills and their copies should be destroyed. Further, be sure to keep the original copy of your most current will in a safe place. An original document carries the most weight when a dispute arises and is most likely to be enforced.

How a Lawyer Can Help

An estate lawyer can answer further questions about revoking your will. They can also help you to update your will to make sure it suits your estate and reflects your current needs. Finally, they can provide legal advice in the event you think there is good reason to challenge a will.