Imagine this: A grieving family gathers after the loss of their beloved grandmother, only to discover that their sweet Gramma Jo’s meticulously crafted will is outdated, reflecting a life that is no longer relevant—addressing all assets to people that are no longer in her life when she died.
A will is a legal document outlining a person’s wishes for the distribution of their assets after they death. But wills don’t have to be static documents; they should be periodically reviewed and updated to reflect life changes to make sure their true intentions are met. Let’s get into everything you need to know about updating and revoking wills—why people do it and how to do it.
Why should you update your will?
People should update their will whenever they change their mind, have a major life event occurrence, move to a new state, or have a major change in finances. Updating your will ensures that your will still reflects your true intentions for your assets after you pass. Here are some triggers that may cause a person to update their will:
- A new marriage
- A divorce
- Birth of a child
- Adoption of a child
- Death of a beneficiary or will executor
- Significant change in finances (increase or decrease)
- Moving to a different state (updating the will according to the new state’s laws)
- Change in your wishes for your assets
- Change in your wishes for executor of your estate
- Change in your state’s estate planning laws
As you can see, there are many reasons why people might want or need to change their will. At the end of the day, it’s totally up to you—after all, it is your assets and hard earned money that is in question. You can do with it how you wish!
How to update your will
The laws on updating a will involve the use of “codicils,” which is the legal term for an update to a will or an addition to an existing will. Both wills and codicils must comply with certain formal requirements to be valid. Generally, both wills and codicils (a.k.a., updates to wills) must be in writing, signed by the testator, and witnessed by at least two competent, disinterested individuals. Remember, what is required is set out by state law, so always check with your state for what is required.
For example, New York law describes a “codicil” as a “supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will.” (N.Y. EPTL 1-2.1). In most states, like New York, the requirements for a valid update to a will (a.k.a., a codicil) are the exact same as those required for the regular, original will.
Here are the requirements to creating a valid will and/or codicil in New York:
- It’s in writing
- It is signed by the will-maker at the end of the document
- It is witnessed by at least two competent individuals
- (See N.Y. EPTL 3-2.1 for the fine print).
Why do people revoke wills?
People revoke wills for any number of reasons—they changed their mind, they had a change in life circumstances such as a divorce or adoption of a child, they lost a bunch of money, they gained a bunch of money, etc. There are a ton different events that could trigger a person to want to revoke a will.
For example, let’s say Mary has always been single and childless her whole life. She has a will that devises all of her assets to her five nieces and nephews. However, one day, she falls in love and gets married at the age of 70. She decides to revoke the will because she no longer wants to devise her assets to her nieces and nephews, but instead she wants her assets to pass through intestacy to her new spouse.
How to revoke a will
Each state has it’s own laws on what is a valid revocation of a will. For example, in California, Cal. Prob. Code § 6120 lays out the ways in which someone can revoke a will. Generally, there are four ways to revoke a will (but can vary by jurisdiction):
- Revocation by physical act
A will can be revoked by physically destroying it, such as by burning, tearing, obliterating, or otherwise destroying it with the intent to revoke it. This is usually done by the testator (i.e., the will-maker) or by another person in the testator’s presence and at their direction.
- Revocation by subsequent will or codicil
A will can be revoked by executing a subsequent will or codicil that either expressly states that it is revoking the previous will or is inconsistent with it. For example, John’s first will says, “All of my estate shall go to my niece, Anna.” Then John’s second will says, “I revoke my previous will dated DD/MM/YYYY, and all of my estate shall go to my nephew, Tom.” This would likely be a scenario where the testator (John) has expressly stated through a subsequent will that he revokes his previous will. It is also inconsistent with the first will because the sole beneficiary changes in the second one.
- Revocation by written declaration
In some states, a will can be revoked by a written declaration that is executed with the same formalities required for the execution of a will. It’s like a will, but all it says is something along the lines of, “I revoke my will dated DD/MM/YYYY” and doesn’t further devise any assets. This written declaration must clearly state the intention to revoke the will.
- Revocation by changes in circumstances
Depending on state law, certain changes in the testator’s circumstances, such as divorce, can automatically revoke provisions in the will related to the former spouse unless the will expressly states otherwise. For example, let’s say John has a will that devises all of his assets to his spouse, Melissa, and she is his sole beneficiary. He creates this will many, many years before their divorce. Most states have a codified law saying that they will treat the spouse as pre-deceasing the testator since it’s unlikely he intended to devise his assets to his ex-wife, as he created the will when they were still married. Effectively, through these types of laws the will is revoked and his assets would be distributed according to default laws.
Important legal considerations
Don’t go scribbling things out on your will just yet. Make sure you really understand what is required for a valid and enforceable update or revocation of your will. (Hint: Scribbling things out on your will is usually not enough). Here are some more considerations to ponder:
- Consider hiring an attorney: Estate planning attorneys can help you create a codicil (i.e., update to your will) that stands up in court when you are gone.
- Safekeeping of the new, updated will: If you are updating your will, make sure you send copies of the new will to your executor and/or beneficiaries. And make sure to keep a copy for yourself somewhere safe, like in a safe deposit box or in a safe filing cabinet at your home.
- Regular review of the will: You may not be done just yet. Review your will regularly to ensure it always reflects your true intentions. You can always make another codicil or revoke it all together.
The bottom line
The takeaway is that updating or revoking your will must be done according to state law in order for it to be valid. Generally, updating a will (i.e., creating a codicil) requires the same formalities as the original will requires. When revoking a will, there are generally a handful of ways to do so, such as physical destruction of the will or subsequent will expressly revoking the first will. It’s crucial to always review your will to make sure and update it or revoke it as necessary. And remember, folks, don’t try this at home! Seek out legal help if you have any questions about how to update or revoke your will properly.
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: Nicole@Helloprenup.com
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