There are several situations where revoking a will may be feasible. For instance, life changes – such as marriage, divorce, and a new baby – may change how you wish to dispose of your property upon death. While the reasons for changing a will may vary, it is important to know how to reflect your current intentions in your will. Failure to properly revoke or change a will can result in confusion and costly litigation.
In most states, revoking a will is pretty straightforward. Generally, you can revoke a will by destroying the old will, creating a new will or making changes to an existing will. In some circumstances, simply giving away all or your property and assets before you die can have the effect of revoking a will (subject to estate tax penalties).
Destroy the Old Will
A common way to revoke a will is to utterly destroy it. You can burn it, tear it, or shred it to pieces, so long as you intend to destroy the will. This applies to whether you actually destroy it, or whether someone else destroys it, at your request, and in your presence. Again, state statutes will define how a will may be revoked. Some states allow revocation by destruction when the testator “tears, cancels, obliterates, or destroys the will with the intention of revoking it.” This often does not include handwritten marks in the margins of a will, or where, for example, a testator draws an “X” through some of the pages of a will. Thus, a court may treat an improperly destroyed will as if the will had not been changed. You may consider destroying an old will entirely regardless of any other method of revocation involved. Multiple wills often result in confusion and the total destruction of a prior will can help prevent debates about which document accurately reflects your wishes.
Make a New Will
Perhaps one of the easiest ways you can revoke a will by simply creating a new will. The new will should be properly executed and reflect language that states your desire to revoke all prior wills, such as “I hereby revoke any and all old Wills that I have previously made.” You can even use one of our state-specific forms to help you get started.
Make Changes to an Existing Will
A testator can revoke a will by making changes to parts of an existing will. The newly-amended will, now called a “codicil”, has the effect of creating a new will because it can change key aspects of an existing will, including new beneficiaries and property designations.
Revoking, Challenging or Changing a Will
It’s perhaps understandable that some people become complacent after drafting a will, even if the will is years or even decades old. Many people assume that as long as they have some form of will in place, all of their intentions–including those that are unstated–will be honored. Unfortunately, the assumption that a court or other estate administrator can read minds can lead to family disputes and to expensive lawsuits. This section provides information on updating or revoking a will, and information about contesting one is also provided. You’ll find articles and other resources on the process for amending a will, information about heirship and inheritance laws, a discussion of the risks with an outdated will, and more.
The Importance of Updating Your Will
If you have a will, then you understand the importance of having a legal document in place that provides your instructions concerning distribution of property, guardianship for your minor children, and your end-of-life care. However, if you’ve obtained new property, if you’ve decided on different and/or new heirs, or if circumstances have changed for other reasons, then it’s important that you update your will. If your will is outdated or otherwise incomplete, a court or other administrator must resort to guessing at your intentions.
Common Scenarios for Amending a Will
While it’s always a good idea to keep your will updated, there are some common scenarios that particularly warrant updating your will. For example, if you own property that’s not mentioned in your current will, particularly property that cannot be easily divided, then you should revise your will. Also, if you want to add or remove heirs from your current will, then you should do so legally, in writing. A court has no way of knowing your intentions, and you don’t want a “he said, she said” situation to develop. If you’ve recently remarried, and/or if you want to leave property for stepchildren, it’s important to add a provision to your will. While some states have heirship laws that automatically designate a person’s children as his or her heirs, these laws generally don’t apply to stepchildren.
Options for Changing or Revoking a Will
There are several options available for changing or revoking an existing will. The simplest method is to create a new will with a paragraph stating, in clear language, that any previous versions are void and have no legal effect. Note that while courts generally look to the most recent version if a person has several wills, to avoid confusion, it’s best to make clear that your most recent will is the one that’s legally binding.
Challenging a Will
A will can be challenged if there’s a suspicion that the decedent was either manipulated or coerced into signing it, or if the will’s signature looks forged or otherwise suspect. If there are multiple versions of a will, there can be a challenge concerning which version is the legally valid one.
Wills Don’t Expire
There’s no expiration date on a will. If a will was validly executed 40 years ago, it’s still valid. But it’s unlikely to have improved with age. An extremely old will is probably completely out of date—by the time of death, the person who wrote it could have a different house, different bank accounts, and maybe even a different spouse and new children. But the document is still in force unless it’s been revoked or replaced. Even though the will is still valid, certain parts might not take effect. For example, if the will-maker got divorced after making the will, most states will cancel gifts to the ex-spouse. Similarly, some provisions might have different outcomes than if the will-maker had died closer to the time of making the will. For example, suppose the will makes a gift to “my children” without naming specific children. In that case, any children alive when the will-maker died are usually included as recipients of the gift, even if the children hadn’t been born at the time the will was made.
Was the Will Revoked?
To revoke a will, the person who wrote it must:
What If the Will Is Gone or Marked Up?
The best way to revoke a will is to make a new will that states you’re revoking the old one. But technically, it’s also possible to revoke a will by tearing it up or throwing it into a roaring blaze in the fireplace. (However, this method is not advised since it can easily create confusion.) If you come across a will that’s been marked up—for example, lines drawn across the text with “revoked” or similar words written on it, it’d be tempting to assume the will is void. And that might be the case, but it also might not be. The will-maker is the only person who can revoke the will. Is there any doubt about who did the crossing out? If surviving family members disagree about who marked up the will, you might need witnesses to testify about what happened or even get a handwriting expert to weigh in.
What If You Can Only Find a Copy of the Will?
Probate courts generally don’t accept copies of a will; they insist on the signed original. If you think the deceased person signed a will, but you can’t find the original, most courts will presume that the will-maker intentionally destroyed the will. The existence of a copy doesn’t change that because even someone who tore up a will might not have gotten around to finding and destroying all the copies. After all, it’s common for people to give copies of their wills to close relatives or the person named in the will as executor.
Despite the presumption that an original will was intentionally destroyed if it can’t be found, you can try to convince a court to admit a copy of the will to probate. But you will need evidence. In an extreme example, if you can prove that a disgruntled relative tore up a will that cut him out, you could probably get a copy of the will admitted to probate.
To prove that the copy you’re showing the court is a valid copy of the deceased person’s final will, you’ll likely need to bring in witnesses to show that:
Most people revoke one will by making another, which replaces the old one. That’s why most wills begin with a sentence like “I hereby revoke all previous wills and codicils.” (A “codicil” is an addition to a will; they aren’t very common these days.) If you find multiple wills containing language like this, then the newest will is presumed to be the one in force—assuming there are no other problems with the will’s validity.
Without a will, it’s impossible to know exactly how someone would’ve wanted you to handle their final affairs. When someone dies without leaving a valid will, state laws called “intestacy laws” will determine who will:
Risks of Destroying a Will Without Creating a New One
What if you want to revoke your current will, but aren’t sure what a new one should say, or you don’t have time to get around to making one right now? Why isn’t it enough to tear up the old will or throw it into the fireplace?
For starters, even if you destroy the original will, there might be copies lying around. Probate courts sometimes accept copies of a will, instead of the original, if there’s a good enough reason. For example, say an adult child, angry at being cut out of his father’s will, destroys the original document. If the other siblings can produce a copy and show evidence that the disinherited sibling is responsible for the disappearance of the original a court might accept it. Otherwise, the wishes of the deceased parent would be thwarted.
Courts tend to be cautious about accepting copies. Someone who tears up a will on purpose does not want the court to honor a copy that surfaces after the will maker’s death. So, generally, courts presume a missing will was destroyed intentionally and require anyone who wants to submit a copy to show a good reason why.
In a recent case, however, a court readily accepted a copy of a will, based on the simple fact that the deceased man’s stepson said he couldn’t find the original in his father’s home, office, safe deposit box, or attorney’s office. The court accepted a document marked “copy” and ruled that it wasn’t necessary to come up with a reason that the original was nowhere to be found. This opinion is shocking, noting that it makes it virtually impossible to revoke a will by physically destroying it — if a copy can be found, even if there’s no explanation of why the original is missing, the copy can be probated.
