As you know, your will is a legal document that directs the distribution of your assets after death. It allows you to clearly and precisely communicate your wishes as to how and to whom you would like your estate to be divided. Your will may be one of the most important documents you prepare in your lifetime.
It is very possible you prepared your will ages ago and have not looked at it since. Maybe you aren’t even sure where you put it, or have left it with an attorney who you no longer associate with and are uncomfortable contacting. It is also likely that the relationships and people in your life have changed, as well as your financial status, and what made sense at the time is no longer applicable. Let’s talk about some of these issues and the many reasons you should update your will.
The Basics
Is your name still the same as when you drafted your will? This seems like an obvious question, but you would be surprised how this is often overlooked because of marriage or divorce. It can cause problems or at least additional paperwork when it comes to probating a will. In addition, if you have moved or own a different home or properties other than the ones that are specified, this also results in complications.
Keep in mind your will is administered in your state of residence when you die and that state’s laws apply, not the laws of the state where the will was written. Some states differ in what is considered a valid will, especially if it is handwritten or completed on an outdated template. If you wrote your will in a state that only requires one witness and then move to a state that requires two, this can also be problematic. Relocating to a new state is definitely a good time to review your will and see that it is up to date, properly witnessed, and still a valid document. Your new will should include language to the effect that you “hereby revoke all prior wills signed by me.” You want to do your best to avoid leaving behind any unresolved issues.
Beneficiaries
Dependent Children- The birth of a first child is a time when many people create their first will. The focus on this will is usually naming the choice of guardian for your child, and who will serve as trustee for any trust created for that child. Keep your will flexible enough to accommodate future children.
Divorce– Your spouse, until they are an ex, will have rights to your estate. However, executing a will before you commence the divorce ensures that your spouse will not receive all of your money if you die before the divorce is complete. Once you file for divorce you often can’t change your will until the divorce is finalized. When you are divorced, your former spouse no longer has any rights to your estate, unless they do as one of the terms of the divorce. Even if you don’t change your will, most states have laws that invalidate any distributive provisions to your ex-spouse in that will. After divorce make sure to update your will as soon as permissible so your new beneficiaries are clearly identified.
Married Children-Your current will likely addresses issues that applied before your child was married. If something happens to your child’s marriage and their inheritance has been co-mingled, or already spent, your intent for your child’s financial future could be lost. If you have concerns about a daughter-in-law or son-in law, you may be able to preserve the assets you intended for your married child by creating trusts to protect him or her.
Unstable Beneficiaries- Unfortunately, you may have a beneficiary who has become disabled, is addicted to opioids or prescription drugs, or has substantial credit problems. While it is impossible to control everything “from beyond the grave,” consider updating your will to include trusts that allow a third party to only distribute funds to that beneficiary under the correct circumstances. If you suspect there is a problem, do this as soon as possible for the protection of your beneficiary. A trustee will be able to assess these challenges with more clarity at a later date, should the need arise.
Charities- Perhaps since the time of initially writing your will you are now involved with a charity or nonprofit that is very important to you and you want to leave money for them. Or, you may have listed a charity in your will that you no longer have an affinity for. Either way, it’s time to do an update to your will to reflect your new interests.
Deceased Beneficiary- If your will listed leaving specific items to someone who has since died, you’ll need to provide new instructions on how to distribute those items. If your estate plan named any individuals to receive funds and those people are no longer alive, you may have to update your will. Even if your old will names alternative recipients or leaves the undistributed funds to the deceased person’s children (or your grandchildren) you may want to re-evaluate this decision and how assets are appropriated.
Primary Caregiver- If one son, daughter, or caregiver has devoted a great deal of their time and financial resources to taking care of you since you wrote your will, you may want to update your document to reflect your gratitude monetarily. If you do, be sure to explain this to your children and leave details about your intentions in the will.
Family Strife– Parties who can’t get along can certainly derail even your most careful and thorough planning. Only your nearest family members can fight (contest) your will, even if you fully disinherit them, while your friends and non-relatives have no default rights. If you think your family will try to fight a bequest in your will, speak to your attorney about adding a No Contest Clause or other ways to protect your intended beneficiaries.
Executor
Depending on when you prepared your will, you may have named your spouse or parent as your first executor, then perhaps your sibling or a friend. Now that everyone is much older, deceased, or your relationships have changed, you may decide another family member, friend or associate is better suited to the task of handling your estate affairs. Update your will accordingly.
Change in Assets
Financial Assets- Perhaps your will spells out exactly how much money you will give to each of your children or a beneficiary, but in the meantime the size of your estate has grown or shrunk. If you specified dollar amounts, this could create challenges for your executor. Amend your will to reflect your current net worth, or use designated percentages. In addition, if you have gifted stock in your will, re-examine the stock’s current worth and if necessary, update your will to ensure that your gift will be what you had in mind.
Possessions- If your will lists items that you no longer own, that might be confusing for your executor, but will eventually just be skipped over. However, did you leave that item to a recipient for a reason, and did you want to replace it with something else? If so, you may want to reconfigure how your current personal property will be distributed. Or, if you already gave an item listed to one child, but the will says it will go to another child, it makes things a little bit awkward between the children when your will is administered. It’s best to stay on top of any addendum items to add or subtract from your list as appropriate.
Estate Planning
Quite often, legislation changes that can affect your estate plan. Stay in touch with your estate planning attorney to see if there have been any new laws that are now advantageous or may detract from your strategy. You may want to start gifting money to younger family members’ college saving plans, or create a donor advised fund to leave a legacy to a cause you believe in and shield some money from taxes. There are a number of strategies that may make more sense for you now than they did when you first prepared your will. In addition, it’s a good time to also review your Durable Power of Attorney and Combination Living Will/Designation of Health Care Surrogate.
Be Proactive
Our lives change in so many ways. As the years pass, loved ones leave us and new family members join us. We relocate, our finances change, and our interests and life goals change. These milestones and others are good reasons for updating a will. You know the importance of a clear and concise will , so don’t make the mistake of leaving others behind to figure out what your most current intentions would have been. Our attorneys will help you update your will and discuss today’s appropriate estate planning strategies so that you are knowledgeable and confident about the choices you make.
Get experienced, professional, savvy representation for updating your will and estate planning strategies. Reach out today.
Staack, Simms & Reighard, PLLC