The best way to revoke (or get rid of) an existing will is to create a new will to replace it. Merely destroying the original will may not be enough. Here's why.
When You Want to Revoke a Will
If you're like most people, you'll make more than one will in your lifetime. After all, circumstances change. We marry, divorce, have children, and acquire and dispose of property -- all of which affect how we want our wills to read. (To learn more about when you might want to review and update your will, check out Nolo's article When to Change Your Will.)
If you decide the will you have now no longer reflects your current wishes, it's always best to simply make a new will.
Risks of Destroying a Will Without Creating a New One
What if you want to revoke your current will, but aren't sure what a new one should say, or you don't have time to get around to making one right now? Why isn't it enough to tear up the old will or throw it into the fireplace?
For starters, even if you destroy the original will, there might be copies lying around. Probate courts sometimes accept copies of a will, instead of the original, if there's a good enough reason. For example, say an adult child, angry at being cut out of his father's will, destroys the original document. If the other siblings can produce a copy -- and show evidence that the disinherited sibling is responsible for the disappearance of the original -- a court might accept it. Otherwise, the wishes of the deceased parent would be thwarted.You can make your will online, quickly and easily, using Nolo's Online Will.
Courts tend to be cautious about accepting copies. Someone who tears up a will on purpose does not want the court to honor a copy that surfaces after the will maker's death. So, generally, courts presume a missing will was destroyed intentionally and require anyone who wants to submit a copy to show a good reason why.
In a recent Texas case, however, a court readily accepted a copy of a will, based on the simple fact that the deceased man's stepson said he couldn't find the original in his father's home, office, safe deposit box, or attorney's office. The court accepted a document marked "copy" and ruled that it wasn't necessary to come up with a reason that the original was nowhere to be found. (The Texas case is called Estate of Catlin.)
Texas legal expert Professor Gerry Beyer called this opinion "shocking," noting that it makes it virtually impossible to revoke a will by physically destroying it -- if a copy can be found, even if there's no explanation of why the original is missing, the copy can be probated.
The Best Way to Revoke a Will: Create a New One
To be on the safe side, follow this advice: If you want to revoke your will, don't rely on destroying the original. Make a new one that replaces the old. The new will should explicitly revoke all previous will and set out your new wishes. Then tear up the old will -- and every copy you can get your hands on.