It's time to write a new will if you're experiencing a big change in your life, such as moving to another state, getting married or divorced, moving in with a new partner, or bringing a new baby into the faimily. Your will should be tailored to your current family and financial situation, not the one you faced five years ago or maybe even just last year.
Here are some events that should nudge you toward making a new will and reviewing beneficiary designations you've made for insurance policies, bank accounts, and retirement accounts.
- You get married. You and your new spouse should create new wills when you get married. In most states, your spouse is legally entitled to claim a percentage of your property after you die, unless you have a written agreement to the contrary. This includes married same-sex couples in Massachusetts. If you don't want to leave at least half of your property to your spouse, see a lawyer.
- You are unmarried, but have a new partner. Without a will or alternate estate plan, such as a living trust, your partner will inherit nothing. To avoid this, you and your partner will probably want to make new wills. (Different rules apply if you and your partner are registered domestic partners in California, Maine, or New Jersey, reciprocal beneficiaries in Hawaii, or civil union partners in Vermont or Connecticut. See Same-Sex Marriage: Developments in the Law.)
- You get divorced. In most states, a final judgment of divorce (or an annulment) revokes any gift made by your will to your former spouse. But in some states, it doesn't. So no matter where you live, you should make a new will after a divorce.
- You bring a new baby into the family. You'll want to make a new will to name a personal guardian for the little one. This is the person you want to raise your child in the unlikely event that both you and the other parent become available. (See Guardianship for Your Children.)
- You have new stepchildren. Unless you legally adopt stepchildren, they have no right to inherit from you in most situations. If you want to leave them a share of your property, you should adjust your will.
- You acquire or dispose of substantial assets, such as a home. If you leave all of your property to one or more people or organizations, there is no need to change your will as what you own changes. But if you've made specific gifts of property that you no longer own, you'll want to avoid leaving the intended beneficiaries out in the cold. (If you no longer own the property, the beneficiaries are probably out of luck; they won't get anything in lieu of it.) Likewise, if you obtain new property and you want to leave it to someone specific, you'll need to change your will to make your wishes clear.
- You're married and move from a community property state to a common law property state, or vice versa. Community property and common law property states view the ownership of property by married couples differently. (See Marriage & Property Ownership: Who Owns What?) This means that what both you and your spouse own may change if you move from one type of state to the other.
- You change your mind about who you want to inherit a significant portion of your property. If you decide to leave a share of your property to someone else, you'll need to create a new will.
Changing a Will
There are two ways to modify a will. One is to add a "codicil" to it. A codicil is a sort of legal "P.S." to the will, revoking part of it or adding a provision, such as a new gift of an item of property. Simple codicils made sense in the era of typewriters, when creating a brand-new will was a hassle, but today they are normally a poor idea. Codicils can create confusion -- sometimes even conflict -- and they must be dated, signed, and witnessed just like a will.
It's usually just as easy to make a new will. In it, you revoke your old one by including a simple statement like this: "I revoke all wills and codicils that I have previously made." It's also a good idea to gather all copies of your old will and destroy them.
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Changing Other Estate Documents
Don't forget that much of your property will probably pass outside the terms of your will. For example, individual retirement accounts, joint or payable-on-death bank accounts, stocks registered with a transfer-on-death form, and life insurance proceeds go directly to the beneficiaries you've named. Your will has no effect on them. If you've changed your mind about who you want to inherit these kinds of property, you'll need to change the documents on which you named the beneficiary.
If you have a living trust and want to change its terms, you can add an amendment to the original document. You may then need to transfer property in or out of the trustee's name. Unlike a will, you do not usually revoke a trust and start over if you want to make a change.
Remember to review your entire estate plan periodically to see if there are any changes you want to make. Once a year would not be too often.
For a comprehensive guide to estate planning, which covers everything from the basics of wills and living trusts to sophisticated tax-saving strategies, get Plan Your Estate, by Denis Clifford (Nolo).