As life changes, so should your estate plan. For many plans, the most critical component of your testamentary documents may be your last will and testament. Your last will and testament tells the courts how to distribute your assets after you pass away.
You should consider modifying your last will and testament after new life events to reflect your current wishes.
“But what happens when you create a new last will and testament?” Does it automatically override your old one?
Today, we’ll explore the relationship between new and old wills and the importance of working with an experienced estate planning attorney to protect your legacy.
How a New Will Affects an Old Will
In most cases, a new last will and testament is prepared with instructions to replace any old will. This instruction is included for clarity and because the most recent valid will is the true expression of your intent.
When you create a new last will and testament, you’re saying: “Dismiss my old will because this new document represents my current desires for my estate.”
Express Revocation Required
For a new last will and testament to supersede an old one, it must contain explicit language that revokes the previous will. You complete this requirement by including a statement in your new testamentary documents to that effect.
Revocation Isn’t Automatic
It’s important to note that simply creating a new will does not automatically invalidate your old one. If the courts find your new will invalid for any reason (e.g., not witnessed or executed correctly or lack of testamentary capacity), your previous last will and testament or old last will and testament may remain intact.
This is one of many reasons why you should work with an experienced estate planning attorney who can ensure that your new testamentary documents meet all legal requirements and effectively revoke your old testamentary documents.
Life Changes That Prompt Drafting a New Will
Many life events may prompt you to create a new will or update an existing one.
- Marriage or divorce.
- Birth or adoption of a child.
- Death of a beneficiary or executor.
- Significant changes in your assets or financial situation.
- Changes in tax laws or estate planning regulations.
- Moving to a new state.
Reviewing your testamentary documents and entire estate plan is important when these changes occur to ensure your estate plan still reflects your current wishes. An outdated will may not provide for your new spouse or children, or it may name an executor who can no longer serve.
By keeping your will up-to-date, you increase the likelihood the courts will protect your legacy and provide for your loved ones the way you intend.
Consequences of Having Multiple Wills
Multiple wills containing conflicting provisions may lead to confusion, expensive estate disputes, and legal challenges from interested parties such as next of kin, beneficiaries, or other family members. For these reasons, it’s generally a good idea to revoke your old will at the time you create a new one.
In some cases, if you draft and execute a new will without explicitly revoking your old one, a court may find that your new will only amends or supplements the old one rather than replacing it entirely.
This ruling can form a “disjointed estate plan” that doesn’t fully reflect your wishes.
To avoid these potential pitfalls, work with an estate planning attorney who can help you revoke your old will and create a new one that is clear, comprehensive, and legally sound.
Best Practices for Revoking an Old Will
There are a few different ways to void an old will;
- Create a new will that explicitly revokes all prior wills and codicils.
- Physically destroy the old will intending to void it (e.g., tearing it up or burning it).
- Create a separate written document that revokes the old will, signed and witnessed with the same formalities as a will.
Of these options, creating a new will is generally the best choice. It lets you start fresh with a clean slate and ensures that your entire estate plan contains one comprehensive document.
Destroy Copies Too
The destruction method isn’t recommended because the destruction of a will doesn’t make clear that the intention was to revoke the will. If a destroyed will can’t be found, the assumption may be that it was lost.
In Alabama, a copy of a lost will (in place of the original) can be admitted to probate. If interested parties discover a copy of your old will after your death, they may admit it to probate, and the courts may validate it, especially when the copy contains no evidence that you intended to revoke it.
Therefore, if you choose to revoke your will by physical destruction, it’s a good idea to destroy all copies along with the original document.
Notify Your Heirs
It’s also good to notify heirs, beneficiaries, and institutions (e.g., your executor, attorney, or bank) holding copies of your old will when voiding your testamentary documents. This notification helps prevent confusion and places everyone on the same page.
How Estate Planning Attorneys Help
Drafting a last will and testament is important for protecting your legacy, but it’s just one piece of the puzzle. A comprehensive estate plan may also include other important documents such as a power of attorney, healthcare directive, and trust.
Thinking through these tasks, addressing concerns specific to your plan and making a cohesive plan are where an estate planning attorney’s services become invaluable.
Your lawyer can help you:
- Identify your goals and create a customized estate plan to execute them.
- Ensure that your last will and testament and other documents are legally valid and enforceable.
- Tackle complex issues like blended families, business succession, and tax planning.
- Modify your existing plan as your life and circumstances change.
- Document your testamentary capacity and keep the notes on file if estate dispute litigation arises after your death.
- Communicate your wishes to your loved ones and help prevent disputes.
Working with an attorney also provides extra protection for your last will and testament. If your last will and testament is ever challenged in court, having an attorney’s guidance can help demonstrate and document that you were of sound mind and not under undue influence when you created it.
Don’t leave your legacy to chance. If you need to draft a new last will and testament or update an existing one, schedule a consultation with the Law Offices of Brenton C. McWilliams today.
Our knowledgeable estate planning lawyers can guide you through the process and help you ensure your personal representative has a good set of instructions to fulfill your wishes and intentions.
