Any adult person may prepare a last will and testament. Nonetheless, a person who has already prepared a will might wonder whether an older will needs to be updated.
Although I strongly recommend that people hire licensed attorneys to analyze and advise whether a particular will needs to be updated, there are four major considerations that a person might ponder when determining whether to contact an attorney to update a will.
First, a will should be updated if the person who is signing the will (legally called the “testator”) has married or divorced. The law has some automatic provisions that update certain paragraphs in wills if a testator divorces without updating his or her will. However, those basic, automatic provisions usually only remove a divorced spouse from a will, and they do not clarify who takes the place of the divorced spouse as to the assets that were to be distributed to the spouse before divorce.
Second, a will should be updated if the testator wants to change the distribution instructions in the will. For instance, many people will change desired distributions once they have grandkids or once their kids graduate from college.
Third, a will should be updated if the suggestion of a guardian for the testator’s kids will change. In many wills, testators will suggest to the Probate Court some suggestions of whom the testators would like to serve as guardians of the testators’ minor children.
The persons nominated to be guardians in a will are not guaranteed to be appointed by a Probate Court. However, if a testator is certain that a previously nominated guardian should no longer be guardian, it is a good idea to update the will to reflect that change. For example, many people will update their wills to nominate their older, adult children to serve as guardians for their minor siblings once the older children become adults.
Fourth, if someone named in a will has died or faces a major life change, the will should be updated. A client recently brought me a will that instructed that money be paid to the testator’s son-in-law. The challenge in this particular instance is that the testator’s daughter and son-in-law divorced after the will was signed. However, the will was not updated. Now, a former son-in-law is set to potentially inherit from his former father-in-law (who did not update his will), and the law does not automatically preclude that outcome.
Sometimes, people will want to amend an earlier will instead of signing an entirely new will. An amendment to a will is called a “codicil.” In most instances, it is easier and simpler for a person to sign an entirely new will, and the difference in the legal fees is usually minor to prepare a codicil versus a new will.
Notably, though, crossing out sentences in wills and writing in amendments on the will itself is subject to a myriad of rules that make this method of amending a will a very bad idea in almost every instance.
Lee R. Schroeder is an Ohio licensed attorney at Schroeder Law LLC in Putnam County. He limits his practice to business, real estate, estate planning and agriculture issues in northwest Ohio. He can be reached at Lee@LeeSchroeder.com or at 419-659-2058. This article is not intended to serve as legal advice, and specific advice should be sought from the licensed attorney of your choice based upon the specific facts and circumstances that you face.
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