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Reviewing and Changing Your Will |
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Seniors Choice, April 2005
It is a good idea to review your Will and estate plan every few years or if your circumstances change. Some examples of changes that may necessitate changing your Will include:
1. If your executor or an alternate executor dies, becomes incapacitated, or is no longer willing to act, you will need to appoint a new executor or alternate.
2. If you marry, your marriage revokes any Will made before the marriage, unless the Will was made expressly in contemplation of the marriage.
3. If you divorce, any gift to your former spouse will not take effect unless you have expressed the intention in your Will that the gift would take effect even after a divorce.
4. If a beneficiary dies, you need to consider what will happen to the share of your estate that the deceased beneficiary would have received.
5. If a beneficiary becomes insolvent or bankrupt, or the beneficiary's marriage breaks up, you may consider whether you want to leave a share of your estate outright to the beneficiary, or create a trust for the beneficiary. A trust may minimize the risk that part of your estate will ultimately go to the beneficiary's creditors, or spouse, instead of to your beneficiary.
6. If your financial circumstances change, you may need to consider whether the Will still meets your objectives in light of your new circumstances.
If you decide to change your Will, you can either make a new Will, or make a Codicil to the Will. A Codicil is a document that amends a Will. The Codicil must meet the same formal requirements of a Will; you must sign it in the presence of two witnesses, or you must acknowledge your signature in the presence of two witnesses, and both of the witnesses must sign the Codicil in your presence.
People sometimes make Codicils where only one or two paragraphs are changed. On death, the Codicil is probated with the Will.
In an age of word processors it is often just as easy to make a new Will, as to make a Codicil, especially if you use the same lawyer who made the original Will, and he or she has it on computer.
If you are reducing a beneficiary's share of your estate, you might prefer to make a new Will instead of amending the old Will with a Codicil. If you make a Codicil, then when a copy of the Will and Codicil are sent to the beneficiary, he or she will see that you reduced his or her share. If you make a new Will, instead of a Codicil, then it is less likely that the beneficiary will learn that you had earlier given him or her a larger share.
You should never try to change your Will by writing changes on the original Will. Doing so will not be effective, and your executor will have to incur legal fees from your estate to apply to court to have the Will probated without the changes.
We recommend that when you decide to change your Will, you go to a lawyer to have it revised. Usually, it makes sense to see the lawyer who drafted your previous Will. He or she will already be knowledgeable about you and your family, which may save time and costs.
When reviewing your Will, you should also review your life insurance policies, any joint assets, and your beneficiary designations on Registered Retirement Savings Plan or Registered Retirement Income Funds, and any pension designations.
By Stanley Rule, of the law firm Tinker, Churchill, Rule. |
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