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Changing a Will

It is extremely important to keep your will updated. As life changes, so do potential beneficiaries and heirs. If you do not keep your last will and testament updated, it may not reflect your wishes given your new circumstances. The following are good situations in which changing a will may be wise.

  • Marriage: When you get married, both you and your spouse should each create a new will. Most states have laws that award a percentage of your estate to your spouse upon your death, including those states that recognize same-sex marriage. However, if you want to devise your will differently, you should specify this in your will. Furthermore, adding your spouse to your will may change the percentage of your estate, or of a specific asset, that another beneficiary or heir was previously written to receive. Changing a will should reflect this new proportion as you see fit.
  • Common Law Marriage: If you and a partner live in Alabama, Colorado, Iowa, Kansas, Montana, Rhode Island, South Carolina, Texas, Utah and Washington, D.C., you may be considered a married couple under your states Common Law Marriage law. Generally, there are several requirements that must first be met for a valid common law marriage. If you meet these terms, the law may treat you and your partner as a married for probate purposes. Be sure to check your states law.
  • Obtaining a new partner, without marriage: Only if married will your partner automatically receive assets from your estate. So, if you find yourself with a new loved one, changing a will to reflect what you would like to leave that partner is necessary. However, if you are registered domestic partners in California, Maine, or New Jersey, reciprocal beneficiaries in Hawaii, or civil union partners in Vermont or Connecticut, then the rules may be different; so, be sure to check your states laws, if you live in one of those states.
  • Divorce: Upon divorce, some states revoke any gifts you leave your spouse in your will. Other states do not. Changing a will upon a divorce is very important. You will want to either specify what you want to leave your former spouse, or else specify how those gifts should now be distributed.
  • A new baby: There are laws in some states that give children some portion of your assets upon your death. However, not everyone wants their property to be distributed the way the state laws specify. If you welcome a new baby into your family, be sure to specify what gifts, the baby shall receive, by changing a will. Perhaps more importantly, be sure to appoint a guardian for the baby. This will be the person who will care for your baby should anything happen to you.
  • New stepchildren: Stepchildren are not automatically entitled to inherit a share of your property in many states. Therefore, if you would like for your stepchildren to inherit any of your property, be sure to specify your wishes by changing your own will.
  • Moving from a community property state to a common law property state: The laws governing what each spouse owns vary depending on whether the couple lives in a community property state or a common law property state. Therefore, if you are planning on moving to a new state, check that states laws. If it differs from the one you currently reside it, be sure to change your own will, according to your new property ownership status.
  • Changing your mind about heirs: Of course, things can happen in life that cause people to change their minds about the way in which theyd like their property distributed. Changing a will to reflect these new wishes is important.
  • New or disposed of assets: If in your will you leave all of your property or a percentage of your property to your heirs, then when what you own changes, there is no need to change your will. However, if you have willed certain gifts to people in your will, and you no longer have those properties, be sure to remove said property from your will. Additionally, when you acquire new property, be sure to account for that in your will.

Ways of changing a will

The easiest way of changing a will is simply to make a new will. It is imperative that you revoke the old will. To do this, simply write a statement in the new will that states that you revoke all wills and codicils that you have previously made. This is sufficient to revoke any previous wills, but it is wise to also destroy any of your previous wills in order to avoid confusion or challenges to your new will.

The other way to change your will is by adding what is called a codicil. A codicil is like an amendment or addition to your will. Use a codicil to revoke part of your will or add a new provision. To be valid, they must be dated, signed, and witnessed just like a legal will. Codicils were an efficient way of changing a will before there were computers and printing was a hassle. Today, codicils should be avoided wherever possible. They can cause confusion, be lost, and are sometimes even a means to challenge wills.

Changes to other estate documents

Much of your property passes by law to beneficiaries, despite what your will says. Property such as retirement proceeds, life insurance proceeds, joint bank accounts, payable-on-death bank accounts, and stocks registered with a transfer-on-death form all pass directly to a specified beneficiary. If you change your mind about who the beneficiary should be, change the names using the forms on which you named the original beneficiaries. Do not change the named beneficiaries through your will, for it will have no effect.

Living trusts are also not affected by the terms of your will. If you decide to change the terms of your living trust, add an amendment to the original trust document. Then, transfer property in or out of the trustees name, accordingly. You do not need to worry about having to revoke a trust and create an original one, like when changing a will.

It is wise to review all of the assets in your estate and your estate plan, once a year, and make any changes you see fit.

Next Steps
Contact a qualified estate planning attorney to help you ensure
that your loved ones are cared for and your wishes are honored.
(e.g., Chicago, IL or 60611)

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