Modifying a Will

A will is a legal document that allows a person to designate how their property will be distributed upon their death. The property that a will may dispose of includes both real and personal property. Generally speaking, in order for a will to be legally valid, the will must:

• Be in writing;
• Be signed;
• Be witnessed; and
• The person who is creating the will must have testamentary and mental capacity, meaning that they must be of legal age and mentally able to form a will.

However, the requirements for executing a valid will vary according to state law as well as what type of will is being created. An example of this would be how a holographic will does not need to be witnessed so long as the will is written and signed by the person who is creating the will. A holographic will is written by the testator, but without the presence of any witnesses. Although most states do not recognize a holographic will, some states recognize it if it is signed and dated by the testator.

The person who created the will is known as the testator, and their will expresses their final wishes. However, the situation or wishes of the testator may change after a valid will has been created, in which case they may wish to update or modify their will. This will be further discussed below.

The most common type of will would be a self-proving will, which has been witnessed and signed in accordance with state laws. An example of this would be how in New York, the following must be adhered to:

• The testator must be 18 or older;
• The testator must be of sound mind at the time that they sign the will;
• The testator must have the present intent to make a will;
• The testator must sign and date the will, and another person may sign and date the will if the testator is in that person’s presence and directs them to do so;
• The signature must be located at the end of the will;
• The testator must declare that the will is theirs, and sign in the presence of two witnesses; and
• The two witnesses must sign the will within 30 days, which begins when the first witness signs the document.

In an oral will, the testator orally communicates the terms of a will to someone else. Most states do not recognize these wills as valid, although some state courts will consider a will made by a member of the military while deployed as being valid.

In order for a will to be properly executed, a will should contain at least one provision directing:

• The appointment of a guardian for surviving children who are minors;
• Which people are to receive what distributions;
• How any property that is not specifically distributed is to be disposed of; and
• The appointment of an executor, who oversees the disposition of the decedent’s estate.

How Do I Modify A Will?

Before modifying a will, it is important to determine whether you have created a valid legal will and what specific type of will you created. Modifying a valid attested will may be more difficult and expensive than modifying an incomplete or holographic will. Generally speaking, when modifying a will, you have two options: write a new will and revoke your old will, or add a codicil to your current will.

Simply put, a codicil is a written amendment or alteration to an existing will. A codicil can involve minor changes or deletions to a will, such as updating the property that is to be distributed. In other cases, a codicil may involve major alterations. An example would be removing a named beneficiary from the will entirely.

It is important to note that in order to create a valid codicil, the same requirements must be met that were met when the original will was created. In the majority jurisdictions, this means that the testator must have testamentary capacity; additionally, the codicil must be written, signed, and witnessed, generally involving two witnesses.

As was noted above, the other option would be to draft a completely new will, to the effect of revoking your old will. The creation of a new will in and of itself may serve to revoke an older will, but this is not always the case. What this means is that it is generally a better idea to expressly revoke an older will in writing, or through some other legal action, than to rely on the new will alone.

Additionally, it is important to note the ways in which a will may not be modified. Wills may not be modified by a person who holds a power of attorney, meaning they may only be modified by an action on the part of the testator. Additionally, a power of attorney ends upon the death of the testator. Neither an executor who is named in the will, nor the attorney who drafted the will, have the power with which to modify an existing will.

What Are Some Of The Reasons For Modifying A Will?

Most commonly, wills are modified due to a significant life change of the testator, or the beneficiaries.

Some examples include, but are not limited to:

• Divorce: The most common reason that people modify their will would be divorce, especially if the testator later remarries. Depending on the state in which you live, your ex-spouse may still have a claim for an inheritance, even if you modify your will. However, you may be able to modify what is left to them through a modification or revocation of your will. Additionally, most states will distribute property according to a will, even if you have found a new partner or spouse. As such, it is important to update your will in the event of a divorce;
• New Beneficiary: An example of this would be how if a will was created, and then several years later, the testator has a child, the testator may wish to alter their will in order to include that child. Additionally, if the testator remarries, they may wish to include their new stepchildren in their will. And, a testator may simply change their mind about a certain heir. An example of this would be through the repair or dissolution of their relationship with a specific family member or heir; and
• Change in Assets: A testator may want to modify their will resulting from a change in their assets. One considerably extreme example would be if the testator was poor when they created their will, but then later wins the lottery and wants to designate through their will who is to receive those funds.
  • A more common example would be when a person disposes of a named asset in the will, such as when they sell a family heirloom that is in their possession. The testator may want to modify their will in order to leave something else to the heir that would have received that named asset, or leave them with a percentage of their property instead.

Do I Need An Attorney To Modify My Will?

If you wish to modify your will, you should consult with an experienced and local will attorney. A local lawyer will help you understand your legal rights and options according to your state’s specific laws, and will help you modify your will as needed.