How to Know if Your Will Is Outdated
Creating a will is an important first step to ensuring that your hard-earned money and assets transfer to the people you want to get them when you die. However, circumstances (and laws) can change, leaving the product of your careful planning outdated. Examine your will at least once a year, and put it in context with the rest of your accounts and estate plans so you know if your will is outdated. When you find problems, draft a codicil to amend your will so it remains accurate.
Evaluating Your Will
Look at the assets listed.If your will includes specific assets that you no longer own, this is a sure sign that your will is outdated. When an asset is named that isn't available, courts won't substitute something else – the bequest will fail entirely and the beneficiary of that asset gets nothing.
- While you may realize you need to update your will if you sell your house or buy additional property, if you listed individual personal items such as cars or jewelry, you may not think about your will when you decide to sell them.
- The same goes for newly acquired assets or property. While most wills include a statement that any personal property not specifically listed goes to a named beneficiary, if you've recently bought something that you would want a particular individual to have, it must be included in your will.
- Keep in mind that one of the primary purposes of a will is to give you control over who inherits your possessions after you die. nothing is too small to be included if the person who gets it is important to you.
- This can alleviate struggles and confusion after your death. For example, if you've always told your nephew that he would get your prized vinyl collection when you pass, it should be listed specifically in your will.
- Otherwise whoever gets the rest of your personal property that wasn't specifically bequested will get that vinyl collection, and they may balk at handing it over to your nephew, regardless of what you told him.
Check the names of your beneficiaries.The people to whom you leave your assets can be just as important as the assets themselves in determining whether your will is outdated. Your beneficiaries must be alive, and should still be important to you.
- Think in terms of location. For example, if you originally bequeathed your primary home to your sister, but she now lives on the other side of the country and would be burdened by maintaining the property, you may want to give it to somebody else.
- Just as circumstances change with time, your feelings about people might change as well. When you made your will, you may have been extremely close to someone who you now can't stand due to a falling out.
- New children or grandchildren also may have entered the picture. If so, you'll have to think about how you want to include them.
- Pay attention to relationships as well. If one of your beneficiaries has recently divorced, an asset left jointly to them and their spouse might fail.
- You also want to be careful about the language where you have intentionally left someone out of your will. In some states, you must explicitly state that you are disinheriting one of your own children, or the probate court may order a share for them against your wishes.
Contact an estate planning attorney.Although you don't necessarily need to have an attorney review your will every year, changes in the law can affect the operation of your will and cause some bequests to fail. An experienced estate planning attorney will understand the most recent changes in the law and how they potentially affect your will.
- If you're reviewing your will every year, have an attorney look it over every three years, or every five years at the longest.
- Not only may inheritance laws change in your state, but court decisions may impact some of the language in your will, requiring it to be rewritten to account for that change in interpretation.
- In addition to regular reviews, you want an estate planning attorney to review your will any time you get married, divorce, have a child, or move to a different state. These major life events typically result in significant changes to your estate plans.
- If you had an attorney draft your original will, he or she typically will be willing to look it over periodically for free or for a substantially reduced flat fee. All you have to do is ask.
Consider talking to an accountant or tax professional.You don't want an inheritance to be an undue financial burden on your heirs. Changes in your financial circumstances or to the tax code may render your will outdated in the sense that passing on an asset results in costs you didn't intend.
- While an estate planning attorney typically is up to speed on the latest changes to inheritance laws and estate taxes, an accountant will be able to break down specific taxes and expenses so you can plan appropriately and understand the costs that will be passed down to various beneficiaries.
- These costs can change depending on your debts, including specifically any mortgages you have on your real property.
- The amount of cash or liquid assets left to beneficiaries also can have significant tax implications. You want to talk to an accountant or tax professional particularly if you've left accounts and the amount of money in those accounts has grown substantially since you originally created your will.
Review your named executors.Being an executor is a tremendous responsibility. Not only should you make sure the people you've named are still living, but you should confirm they're still willing to take on this role.
- Typically your executor must be a resident of the state in which your will is probated, so if the person you'd originally named has moved to a different state (or if you have), you may need to name someone else.
- Although you don't have to do this every year, it's also a good idea to periodically check in with the person you've named as your executor and confirm they're still able and willing to do it.
- Sometimes this is an evaluation you can make on your own. For example, if the person you'd originally named as an executor is battling serious health problems, you might be better off to go ahead and choose someone else.
- You also want to take feelings and relationship into account. If you have a tense relationship with the person you originally named as your executor, you may want to go with someone else.
Placing Your Will in Context
Check named beneficiaries on other accounts.If you have any retirement accounts or life insurance policies, you typically must name at least one beneficiary. These accounts don't necessarily have to be itemized in your will. If they are, make sure what's stated in your will matches your account or policy documents.
- When your will says one thing but another document says something else, you create confusion for your executor and surviving family members that can lead to fraught legal battles.
- Keep in mind that accounts with named beneficiaries typically don't have to go through probate, so there's really no need to mention them in your will.
- However, you do want to make sure that the division of your assets, both in terms of items in your will and other accounts, matches your intent.
- For example, if it is your intention to divide all assets among your three children equally, but you have your eldest child listed as your beneficiary on your retirement account and your life insurance policy, that might result in an unequal distribution – not to mention causing tension between your children.
Determine how funeral expenses and preferences will be handled.Keep in mind that your will typically cannot handle immediate expenses, because it must first go through the probate process. Final expenses typically must be handled in a more direct way.
- Wills often don't enter probate until long after the funeral is over, and this means your will also typically isn't the best place to provide any details regarding your desires or intentions for these final rites.
- You may want to draft a separate document that lists your desires for your funeral and burial, cremation, or other wishes – particularly if your own wishes go against what is traditionally done in your family.
- For example, suppose you want to be cremated and have your ashes scattered at your favorite beach. However, your family has plots at a particular cemetery where family members have been buried for generations. Unless you make your wishes known in writing, you probably will end up in that cemetery by default.
- Think in terms of making things as easy as possible for your family members. They will be grieving your loss, so your instructions and plans should be laid out as clearly as possible with as much detail as you have.
Create plans for handling end-of-life decisions.Your will essentially has no effect while you are still alive, so it is not the place to name people who will handle your affairs or make decisions for you if you become incapacitated toward the end of your life.
- There are two documents – a living will and a healthcare power of attorney – that can be used to inform your family about your end-of-life wishes and allow you to name a particular person to make these decisions for you.
- If you don't already have these documents, talk to an estate-planning attorney about drafting them for you.
- Keep in mind you can draft these documents on your own by using forms or templates available for free or for a nominal fee. However, you typically don't have any guarantee that documents created using such templates will be valid in your state.
Consider creating a Tangible Personal Property Memorandum (TPPM).If your will includes numerous bequests of personal property, a TPPM can save you a lot of time and trouble because it can be changed more easily than the will itself can.
- A TPPM is a separate document that is incorporated into your will by reference. Because it isn't a will or testamentary document itself, the formalities required for signing a will aren't required, and this document can be amended at any time.
- Not every state recognizes TPPMs as valid, however. You can ask an estate-planning attorney if TPPMs are recognized in your state.
- Even in state where TPPMs aren't considered authoritative, executors typically attempt to fulfill them as much as possible. Your attorney can give you more information on how TPPMs are treated in your state and whether one would work for you.
Drafting a Codicil
Make a note of the provisions you want to change.A codicil will amend your will so it will no longer be outdated. However, since you aren't drafting a new will, you must list specifically the clauses or sections that you intend to change.
- How you note your changes in the codicil itself will depend on how your will is organized. If the clauses have numbers or letters, write those down so you can reference them specifically in your codicil.
- If sections have their own titles, you typically want to include those as well.
Decide whether you need an entire new will.While a codicil can amend an existing will, if the changes you want to make are extensive, or involve issues that are fundamental to the document as a whole, it may be easier to start over from scratch.
- Codicils often are best if you're making minor changes or adding something to your will. However, keep in mind that codicils can be lost or misplaced, and may open up an opportunity for someone to challenge your will – especially if they're disinherited in the codicil.
- Any changes or additions meant to comply with a change in estate law probably merit the drafting of a new will. Similarly, consider drafting a new will if you want to account for changes in real property ownership.
- If you decide to use a codicil rather than drafting a new will, make sure you keep the signed document along with your original will. While you shouldn't attach or staple the documents together, you want to make sure they both will be found at the same time.
Title your document.Your codicil should be titled similarly to the way your will is titled, containing both the title of your will and your full legal name as it appears in the will itself. For the sake of continuity, try to use the same formatting as was used in your will.
- You also want to identify which codicil this is, so there's no question – even though the document will be dated. You may think this will be the only codicil you'll ever make, but you don't know that, so just say it's the first.
- For example, you might write "First Codicil to the Last Will and Testament of Sally Suzanne Sunshine, Esq."
Draft your changes.Begin your codicil using the same sort of introduction that was used in the will itself, then add individual paragraphs that note the changes to each provision you intend to make. Consult an estate planning attorney if you are unsure about the language to use.
- Typically you want to include any changes before you list any additions.
- When listing the changes or additions you want to make to your original will, follow the same order and organization as was used in your original will. This will make it easy to reference back to the other document.
Reaffirm the rest of your will.To preserve the other bequests in your original will that remain unchanged, include a paragraph at the end of your codicil that states explicitly that other than the amendments you've made, you still want everything else to pass under the terms of the original will.
- If you're drafting your codicil on your own, you can find appropriate language on forms or templates online. This language does not differ substantially from state to state.
- The purpose of reaffirming your will is to ensure there is no doubt as to your intent in drafting the codicil. Without it, the existence of a codicil can open the door to challenges, especially from family members who aren't happy about something contained in either document.
Sign your codicil.For a codicil to have the proper effect of amending a will, it must be signed using the same formalities as the will itself. In most states, this means that you must sign it in front of at least two witnesses.
- Your witnesses must be individuals who know you, but who are not listed as beneficiaries.
- They don't have to read your will before they sign as witnesses – they are witnesses to the fact that you signed it and were of sound mind and body when you did so, not to the document's contents.
- In some states you must have the document notarized in addition to having it signed by witnesses. When in doubt, look or think back to what was required when you signed your original will – the process will be the same for the codicil.
- Check your state's law or contact an estate-planning attorney if you have any questions regarding the formalities required.
- Once your codicil is signed, keep it in a safe place – preferably the same place where you keep your will. If you have copies of your will in several places, make the same number of copies of your codicil so you can store them together.
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