Life wreaks havoc on even the best-laid plans and changes in your life affect what you include in your will and what laws will be applied to enforce it. You may sell one house and buy another. You may divorce. You may have or adopt children. Eventually you will face the grief of losing a loved one. Not all life changes require you to change your will. However, significant ones often do. This article tells you when it’s necessary to make a new will.
Suppose that after you use Nolo’s Online Will to leave all or part of your property to your spouse, you get divorced. Under the law in many states, the divorce automatically cancels the bequest to the former spouse. The alternate beneficiary named for that bequest or, if there is none, your residuary beneficiary, gets the property. In some states, however, your former spouse would still be entitled to take your property as directed in the will. If you remarry, state legal rules become even more murky. (In a few states, these rules also apply to registered domestic partners.)
Rather than deal with all these complexities, follow this simple rule: Make a new will if you marry, divorce, are separated and seriously considering divorce or if you register or dissolve a domestic partnership.
Beware of state laws on spouses’ shares.If you leave your spouse or registered domestic partner out of your will because you are separated, and you die before you become divorced, it is possible that the spouse or partner could claim a statutory share of your estate. See Your Spouse’s Right to Inherit From You, and consult a lawyer to find out how the laws of your state apply to this situation.
If you leave all your property in a lump to one person or a group of people, there is no need to change your will if you acquire new items of property or get rid of existing ones. Those individuals take all of your property at your death, without regard to what it is.
But if you have made specific bequests of property that you no longer own, it is wise to make a new will. If you leave a specific item—a particular Tiffany lamp, for example—to someone, but you no longer own the item when you die, the person named in your will to receive it may be out of luck. In most states, that person is not entitled to receive another item or money instead. In some states, however, the law presumes that you wanted the beneficiary to have something—and so gives him or her the right to a sum of money equal to the value of the gift. While this may be what you want, it could still disrupt your plan for how you want your property distributed. The legal word for a bequest that fails to make it in this way is ademption. People who do not get to take the property in question are often heard to use an earthier term.
However, in some circumstances, if a specific item has merely changed form, the original beneficiary may still have a claim to it. Examples of this are:
A problem similar to ademption occurs when there is not enough money to go around. For example, if you leave $50,000 each to your spouse and two children, but there is only $90,000 in your estate at your death, the gifts in the will must all be reduced. In legal lingo, this is called an abatement. How property is abated under state law is often problematic.
You can avoid these problems if you revise the type and amount of your bequests to reflect reality—a task that requires the commitment to make a new will periodically.
Each time a child is born or legally adopted into your family, the new child should be named in the will and provided for according to your wishes. If you do not do this, the child might later challenge your will in court, claiming that he or she was overlooked as an heir and is entitled to a substantial share of your property.
Similarly, if any of your children die before you and leave children, you should name those grandchildren in your will. If they are not mentioned in your will, they might later be legally entitled to claim a share of your estate.
Read more about See Naming and Disinheriting Children.
Nolo’s Online Will applies several state-specific laws when it helps you create your will. These laws are especially important in two situations: If you have set up one form of management for young beneficiaries and then move to a different state, you may find when making a new will that you have different management options. This is because states have adopted varied versions of the Uniform Transfers to Minors Act. If you want to see whether your new state offers different management options, see The Uniform Transfers to Minors Act.
If you are married and do not intend to leave all or most of your property to your spouse, review Your Spouse’s Right to Inherit From You which discusses the rules if you move from a community property state to a common law state or vice versa.
If a beneficiary you have named to receive a significant amount of property dies before you, you should make a new will. It is especially important to do this if you named only one beneficiary for a bequest and did not name an alternate—or if the alternate you named is not your first choice to get the property.
The first choice or alternate named to serve as a personal guardian for your minor children or those you have named to manage their property may move away, become disabled or simply turn out to be unsuitable for the job. If so, you will probably want to make a new will naming a different person.
The executor of your estate is responsible for making sure your will provisions are carried out. If you decide that the executor you originally named is no longer suitable—or if he or she dies before you do—you should make a new will in which you name another person for the job.
The witnesses who sign your will are responsible for testifying that the signature on your will is valid and that you appeared capable of making a will when you did so. If two or more of your witnesses become unable to fulfill this function, you may want to make a new will with new witnesses—especially if you have some inkling that anyone is likely to contest your will after you die. But a new will is probably not necessary if you have made your will self-proving.