A Will (which should be accompanied by other important documents such as an advance healthcare directive and financial powers of attorney) is a foundational estate planning document. However, according to Gallup, less than half of US adults have a will.[1]This number has remained consistent in Gallup polls dating back to 1990. If you are among the minority of Americans with this crucial estate planning document, then you probably recognize the risks of not having a Will.
But simply creating a Will does not mean that your estate plan is complete or final: your Will may need to be updated from time to time. It may even need to be revoked and redrafted entirely.
Usually, revoking a Will is a purposeful act on the part of the Will maker (“Testator”). But many states have laws that automatically revoke a Will, or portions of it, in specific situations. Certain actions by a beneficiary can also revoke that person’s interest in the Will.
What is in a Will?
A Will—more formally known as a Last Will and Testament—provides instructions about who should receive a person’s money and property after the person’s death and who they would like to care for their dependents. A basic Will should specify:
who receives personal assets and in what amount
a person or executor responsible for making sure that instructions in the Will are carried out (“Personal Representative”)
guardian arrangements for minor children
When a person passes away, their Will goes through a legal process called probate, usually in a probate court located in the county where they lived, although a different location may sometimes be required if, for example, the deceased person owned real estate in another county or state. But if a person dies intestate, meaning without a Will, the court must follow state laws that control the distribution of a person’s assets and the appointment of executors and guardians.
Most people want to make their own decisions about such important matters rather than leaving them to the state. Yet state law will determine what will happen if a person does not have a Will.
Creating a basic Will does not have to be expensive or time-consuming. A Will should be updated as life circumstances dictate. Many people change their Will when they get married or divorced, have a child, accumulate more wealth, buy new property, retire, or move to another state or country. The Testator might also have a change of heart about beneficiaries or a guardianship arrangement due to a personal falling out or changes in the circumstances of a beneficiary or potential guardian.
Estate planning attorneys generally recommend revisiting—and possibly updating—a Will every few years. Even if the person who created the Will has not experienced a major life event, periodic reviews are essential to ensure that the Will still accurately represents their intentions and relevant law.
Updating an Existing Will
Amendments to a Will are made using a legal document called a codicil. Like the execution of a Will, executing a codicil usually requires that the person who is creating or changing their Will sign the Will or codicil in the presence of at least two witnesses.
Codicils are something of an anachronism dating to the time before computers, when drafting a new Will by hand was more onerous. Nowadays, it is easier than it used to be to create a new Will that contains the amended portions. The American Bar Association also cautions that codicils can lead to confusion or legal challenges if they create ambiguities when read together with the provisions in the original Will.[2]
Using a codicil to make minor changes to a Will—such as changing the Personal Representative—does not necessarily revoke it. However, in some states, a codicil can be used to republish or revoke a Will.
Executing a New Will
Your estate planning lawyer may advise you that a codicil is not worth the potential problems it can cause and instead recommend that you make a new Will. The new Will must be properly executed in accordance with state law. In addition, the Will should contain language that clearly states the Testator’s desire to revoke all prior Wills. However, there may be instances in which the Testator does not want all prior Wills revoked (e.g., they may need to have a separate Will for property owned in a foreign country).
Destroying an Old Will
The fastest way to revoke a Will is to physically destroy it. States have different definitions of what qualifies as the destruction of a Will. The Maryland statute states that a person can revoke their Will by “burning, cancelling, tearing, or obliterating” it. Note that this definition does not include making notes in the margin or placing an “X” through part of a Will. Note that this has to be done in the Testator’s presence and by the Testator’s express direction and consent, so accidentally destroying a Will may not revoke it.
If the Will cannot be found, there could be a presumption that the Will was destroyed and therefore revoked. However, this presumption can be rebutted and Maryland does have a process by which copies of lost Wills can be admitted to probate. If the intent is to revoke a Will, it is best to consult an experienced estate planning attorney so that there is no confusion.
If the destruction of a Will does not comply with the requirements of state law, the court may rule that it was improperly destroyed and treat it as though it is still in effect. Typically, when somebody destroys an old Will, they make a new Will. But if the old Will is not legally revoked, and a new one is created, the existence of multiple Wills could lead to litigation.
Revoking a Will by Operation of Law
State law may provide that a Will is revoked, in part or in full, if certain events take place, such as the following:
If a person gets divorced or has their marriage annulled, any part of the Will that refers to their spouse is automatically revoked unless otherwise provided in the Will or divorce decree.
There is a new Will or codicil that includes provisions that contradict provisions in old Will or codicil.
A beneficiary’s interest is revoked under a “slayer statute” if the beneficiary kills the Testator.
Thinking of Changing Your Will? Talk to an Estate Planning Lawyer
Whether you are making minor changes to your Will or destroying the old one and starting from scratch, any revocation of your Will must comply with state law. Otherwise, a court might not recognize your final wishes, which can produce consequences akin to not having a Will at all and cause your loved ones additional stress and potential conflict.
An estate plan should be updated every few years to take into account new milestones and directions as well as changes in the applicable law. To discuss changes to your estate plan, please contact us to schedule an appointment.
[1] Lorie Konish, 67% of Americans have no estate plan, CNBC (Apr. 11, 2022), https://www.cnbc.com/2022/04/11/67percent-of-americans-have-no-estate-plan-heres-how-to-get-started-on-one.html; Jeffrey M. Jones, How Many Americans Have a Will?, Gallup (Jun. 23, 2021), https://news.gallup.com/poll/351500/how-many-americans-have-will.aspx. [2] Introduction to Wills, Am. Bar Ass’n, https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/an_introduction_to_wills/ (last visited Feb. 24, 2023).