The Law in Your Life

Estate Planning

Changing Your Will

There are very strict requirements on creating wills in most states. As you might expect, there are also very strict rules governing changes made to wills. It is important to understand that if you make a change of any kind to a will, even one tiny pen mark, you must comply with the requirements of your state's laws. If you do not and simply make changes, you might be invalidating the entire will. Many people fail to grasp this principle, and believe that if you make a change to one minor paragraph or word, then the rest of the will remains valid. You should understand that the body of case law in most states will compel a different result. In fact, your will might be declared invalid. If you have not made another, your property could end up in probate court being distributed according to the laws of intestacy.

This is drastic and can produce drastic consequences. For example, consider this situation. You have 5 children and a spouse. However, one child is having certain problems and has already completed four (4) credit card applications sent to you, forged your name and ran up debts of $29,000 When you make your will, naturally you take steps considering how to make sure this child is not given a substantial amount of your estate, and instead, you take $20,000 and set up a trust to take care of the necessities for this child. See the section on Trusts for more information.

Then you give your spouse and your remaining 4 children equal shares of your estate. Later, you change the specific gift of your favorite chair from your nephew to your niece, by crossing out the nephew's name and writing in the niece's name. All seems well. Right? Wrong. Were you to die, here is what could very realistically happen. Your will, because of the minor name change on a minor gift, could be declared invalid. This means that you die with no will, and as such, your estate could pass according to the laws of intestacy. These laws vary by state, but most are consistent in the manner in which they treat your immediate blood relatives, usually equally.

Thus, a possible outcome might be that each of the five children would receive equal shares of your estate. No child would be excluded. Thus, the outcome you did not want, your troubled child having access to your property, except as provided specifically in your trust, now occurs. This child ends up getting not only the special trust assets, but also the same property as his brothers and sisters. In effect, this child, who was not supposed to inherit much, ends up with more than the other children. Not only that, but since you have died, you can no longer amend your trust to fix the problem.

Even worse, having an equal share, the same as others, gives one an immense amount of rights under the law. Let's say your intent, in the same situation, was to allow your spouse to live in the house for their life, then the four other children would either keep the house or sell it and keep the proceeds. Now, because of the alteration in the will, the will is invalid and the fifth child has a property interest equal to the others in the house in which your spouse is currently living. This means that he/she can go get a lawyer and possibly force the sale of the house immediately, and the eviction of your spouse upon the sale. Or, he/she could force the spouse to actually pay rent for living in her own house.

These incredible results are not fair, and are not anywhere near your intent, all because of some stupid chair you wanted to give to your niece instead of your nephew. But, this one little change can do all of this damage. The courts are full of these kind of legal battles. These are very common.

Even worse, a little advice and a properly changed will would have ensured that your wishes would have been completely carried out and you would have avoided all of these drastic outcomes. This example illustrates the necessity of having an attorney prepare your will, and to make any changes to your will. You must know the laws of your state before you act.

When Can You Make Changes To Your Will?

You can change your will as many times as you like before your death. However, remember that you must be competent and not acting under any duress to prepare a valid will. So too, you must not be incompetent or acting under any fraud or duress in making any changes to your will.

Codicils

You may have heard the legal term "codicil." This is simply a formal change to your original will. There are strict requirements regarding codicils which must be followed to avoid the disastrous results shown in our example. Many attorneys use this format specified in state law to make codicils to a will. You can open a sample Codicil to review in another window.

Often it is a better practice to simply create a new will. While one realizes that this is not always possible and there are good reasons not to execute a new will, you ought to consider doing it even if it costs a bit more in legal fees. The creation of a new will, and the destruction of the old will witnessed by others, makes a much cleaner practice and will help to avoid much confusion later.

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