A will is a foundational estate planning document. However, according to Gallup, only 46 percent of US adults have a will. This number has remained consistent in Gallup polls dating back to 1990. If you are among the minority of Americans with this crucial estate planning document, then you probably recognize the risks of not having a will. Simply creating a will does not mean that your estate plan is complete or final. It is best practice to regularly have your will reviewed every five to seven years. In some cases, it may even need to be revoked and redrafted entirely. Usually, revoking a will is a purposeful act on the part of the will maker.
What Is in a Will?
A will—more formally known as a last will and testament—provides instructions about who should receive a person’s money and property after the person’s death and who they would like to care for their dependents. The person who creates the will is known as the “testator” or “testatrix.” A basic will should specify the following:
- who receives personal assets (e.g. property, bank account balances, investments, business interests, and personal possessions) and in what amount
- an executor or person responsible for making sure that instructions in the will are carried out
- guardian arrangements for minor children
When a person passes away, their will goes through a legal process called probate. A will is essentially a set of instructions to the probate court on how you want your estate distributed. However, when a person dies intestate, meaning without a will, the court must follow state laws that control the distribution of a person’s assets and the appointment of executors and guardians. Most people want to make their own decisions about such important matters rather than leaving them to the state. Yet state law will determine what will happen if a person does not have a will.
Creating a basic will does not have to be expensive or time-consuming. A will should be updated as life circumstances dictate. Many people change their will when they get married or divorced, have a child, accumulate more wealth, buy new property, retire, or move to another state or country. The testator might also have a change of heart about beneficiaries or a guardianship arrangement due to a personal falling out or changes in the circumstances of a beneficiary or potential guardian.
Even if the person who created the will has not experienced a major life event, periodic reviews are essential to ensure that the will still accurately represents their intentions and relevant law.
Updating an Existing Will
Amendments to a will are made using a legal document called a codicil. While codicils provide a quick fix, the American Bar Association cautions that codicils can lead to confusion or legal challenges if they create ambiguities when read together with the provisions in the original will.[1]
Executing a New Will
Your estate planning lawyer may advise you that a codicil is not worth the potential problems it can cause and instead recommend that you create a new will. The new will must be properly executed in accordance with state law. In addition, the will should contain language that clearly states the testator’s desire to revoke all prior wills.
Destroying an Old Will
The fastest way to revoke a will is to physically destroy it. In Wisconsin, a will is revoked in whole or in part by burning, tearing, canceling, obliterating or destroying the will, or part, with the intent to revoke, by the testator or by some person in the testator’s conscious presence and by the testator’s direction.
As noted, the destruction must be done with the intent and for the purpose of revocation, so accidentally destroying a will may not revoke it. If the intent is to revoke a will, it is best to consult an experienced estate planning attorney.
Revoking a Will by Operation of Law
Wisconsin law may provide that a will is revoked, in part or in full, if certain events take place, such as the following:
- If a person gets divorced or has their marriage annulled, any part of the will that refers to their spouse, or the spouse’s family, is automatically revoked in many states.
- There is a new will or codicil that includes provisions that contradict provisions in old will or codicil.
- A beneficiary’s interest is revoked under a “slayer rule” if the beneficiary kills the testator.
Thinking of Changing Your Will? Talk to an Estate Planning Lawyer
Whether you are making minor changes to your will or revoking the old one and starting from scratch, any revocation of your will must comply with Wisconsin law. If not, a court might not recognize your final wishes, which can produce consequences akin to not having a will at all and cause your loved ones additional stress and potential conflict.
An estate plan should be updated every few years to take into account new milestones and directions as well as changes in the applicable law. To discuss changes to your estate plan, please contact us to schedule an appointment.
Posted in: Estate Planning, Family Planning