After you have spent many hours, and probably some money, drafting your estate plan, remember that life doesn’t stand still. Your circumstances are to change and there is a pretty good chance you will buy or sell property after your estate plan is in place. It is vital to make sure that you account for these changes in your estate plan. However, doing so isn’t as easy as simply crossing out a paragraph or adding another sheet of paper. You must take certain steps to ensure that your property is accounted for, legally, in your will or estate plan.
An amendment to a will is called a codicil. You formally execute a codicil using the same formalities as you would for a will (witnesses and signature requirements often apply to codicils, for example). The same competency and undue influence standards that apply to the execution of a will also apply to codicils. Courts want to ensure that your will is not altered after it is in place due to nefarious behavior or fraud. Of course,
When you write a new will, be sure to include the date that it was signed and executed, and put in a sentence that states the new will revokes all previous wills.
It’s vital such codicils be dated so the court can tell whether they were made after your will was executed. After a codicil is properly drafted and executed, it should be kept with the will.
If changes are substantial—-for example, if you have sold all the real estate you owned in one state when you wrote your will and now own a condo on the beach across the country—it may be advisable to write a new will entirely.
Your new will should indicate that it revokes the old one. When you write a new will, be sure to include the date that it was signed and executed, and put in a sentence that states the new will revokes all previous wills. Otherwise, a court may rule that the new one only revokes the old where the two conflict—which could cause some serious problems.
If you fail to update your estate plan to account for changes in the property you own, the courts will give as much effect to your old will as possible. Some changes may be accommodated by the law, regardless of what your will says. For example, the courts will not simply let your new home remain without an owner because you didn’t draft a codicil to account for the home’s distribution upon your death. To have more control over this unaccounted for property, you may want to include a “safety net” in your will to plan ahead for unaccounted assets—called the residuary estate. The residuary estate is covered by a paragraph in most wills that says you leave all assets not specifically disposed of elsewhere to your spouse or a charity or institution of your choosing. If you actually want that new beach house to go to your children and not your alma mater, check in with your lawyer on a regular basis (say, once a year) for an “estate plan” checkup.
Drafting a new estate plan, adding a codicil, or using one of the many other estate planning tools your lawyer may suggest is the best way to ensure your loved ones are taken care of in the way you hoped.