Changing a Will: When Should I Do It?

We recently had a client come in to change his last will. Although he had not originally intended to make any modifications to his will, some major life changes had recently occurred in his life that made it necessary to change the will. ​​Updating a will is not only a good idea, but it is also required in a number of circumstances. While the following list of reasons for changing a will is not exhaustive, it covers some of the most prevalent grounds on which a will change is necessary.


When to Change my Will

  • Marriage. You will want to include your new spouse in your will. While most states protect surviving spouses, you may desire to leave your entire estate or a portion of your assets to your spouse. You can accomplish this by drafting a new will. Making a new will is also a good idea for married couples of the same gender. While the 2015 Supreme Court decision legalizing same-sex marriages should protect you, some jurisdictions may refuse to recognize same-sex marriages' distribution rights. It is safer to update your will to include your spouse in a same-sex marriage.
  • Divorce. This is a compelling incentive to update or create a will. Some states have rules that say your previous final will is null and void if it leaves some or all of your estate to your ex-spouse, but other states may uphold your will. If you do not make a new last will and testament, your former spouse may still inherit your estate. As a result, revising wills after a divorce is a good idea.
  • Common law marriage: If you have a common law marriage, you may want to make sure that your will protects your common law spouse. Many states that do not recognize common law marriages will recognize a common law marriage if it was legitimate in another state that does. Include your common-law spouse in a new will to ensure that he or she is protected.
  • A new relationship where there is no marriage: If you die without leaving a will for your domestic partner, he or she will be left with nothing. You can change your will to incorporate your partner in your estate plan. You should both consider amending your wills.
  • A new baby: When a new baby is born or adopted, it's critical to revise your will. You might desire to leave a portion of your wealth to your child. You can also name guardians for your children in a new will.
  • Stepchildren. In most cases, stepchildren do not have inheritance rights. Make a new will to include them in order to ensure that they receive a share of your estate.
  • Death of a child or spouse. If one of your heirs dies before you, change the beneficiaries in your will or give the surviving heirs a different percentage of the assets.
  • Adding a New Heir. If you want to add a new heir such as a grandchild or a favorite nephew, you need to change your will.
  • A change of heart about heirs. If you decide to change your heir(s), you need a new will.
  • Moving to a new state where distribution laws are different. If you move from a community property state to a common law property state, or vice versa, your estate will be subject to different laws. Consider changing your will.
  • Change in value of the estate. If you get new property, obtain more assets, or lose property or assets, consider revising your will.
  • Leaving assets to charity. If you decide to leave all or part of your estate to charity, change your will to reflect that intent.
  • Changing guardians. If you decide to change guardians, you need to update your will.

How to Change my Will

Making a new will to replace an old one is often the best approach to update your will. You must include a statement in the new will that you are revoking your previous will. To revoke your old will, you must make a statement such as "I hereby revoke any and all wills and codicils formerly made by me.” 

Another way to amend your will is by adding a codicil. When small adjustments to your will are made when the will is lengthy or particularly detailed, a codicil is appended to the will. If you're going to employ a codicil, you should have it prepared by an attorney. It must be formatted in a precise way, or it will be invalid if done incorrectly. Most attorneys advise against employing codicils because they can lead to misunderstandings regarding your intentions.

Can a Power of Attorney Change a Will?

You cannot amend a deceased person's will if you are the attorney in fact named under the power of attorney. When the testator dies, the power of attorney expires (the person who signed the will and the power of attorney).

Can an Executor Change a Will?

The Executor, or the person designated by the testator to carry out the provisions of the will such as paying bills and closing bank accounts, cannot change the terms of the will. The executor is obligated to follow the terms of the will if they are clear. If the executor is given some latitude in carrying out his obligations by the will, he or she will be able to make good-faith decisions to protect the estate's assets.

For more information about amending wills or to discuss estate planning, please contact the Law Office of Inna Fershteyn at (718) 333-2394.