19 May Can a Will Be Changed or Revoked after My Death?
By: Barry E. Haimo, Esq.
May 19, 2015
Can a Will be Changed or Revoked after My Death?
BARRY HAIMO: A will cannot be changed after death.
A last will and testament is an important estate planning document that states your final wishes. You can use a will to leave instructions about what should happen to your belongings and money after you die, indicate how debts and taxes should be paid, and to name guardians for your children, pets, and property.
Typically, a will cannot be changed after your death. But can a will be changed during your lifetime? Yes. In fact, you can make changes as often as you like. You may do this in one of two ways:
Adding a codicil. You can change or update the terms of your will by preparing a formal amendment called a codicil. With a codicil, your will remains valid, but one or more of the terms is altered by the provisions of the codicil. In order be considered valid, a codicil must be written by hand and signed by you under the presence of witnesses. The law is extremely precise with respect to the formalities required to execute any testamentary document, which includes a will, trust, amendment to trust or codicil (amendment to a will).
Creating a new will. You can completely revoke your original will by creating an entirely new will. Typically, a new will that revokes all prior wills. If there is any concern about organization, in order to avoid confusion, it might be a good idea to destroy the old will and any copies.
When making changes to your will during your lifetime, it’s important to execute changes correctly—otherwise, the court may not uphold the validity of your will. You should never make changes by hand or cross out items.
It’s a good idea to revisit your will and other estate planning documents frequently throughout your lifetime to account for changes in your circumstances, family situation, and finances. This includes remarriages, deaths, births, and divorces.
It is particularly important to ensure your will is updated and current during your lifetime because – as mentioned above – it cannot be changed after your death. Your surviving family members can typically only challenge the terms of your will in certain situations, such as under theories of duress, undue influence, or improper execution.
In some circumstances, they may be able to request a “reformation to correct mistakes,” which allows for modification of the will if an honest mistake of fact or law needs to be corrected. In order to obtain a reformation, your surviving family must demonstrate clear and convincing evidence that a mistake or fact of law caused your will to reflect something other than your true intent.
If you are a surviving family member who believes that a will does not reflect the true wishes of your loved one—whether because of honest error, undue influence, or improper execution—talk to an estate planning attorney with experience in will contests and reformation. Your attorney can help you understand your options and determine the best strategy for obtaining a change or revocation to the will. With the help of an attorney, you can ensure your loved ones’ wishes are honored and challenge an improper or misleading will.
Barry E. Haimo, Esq.