You should review and change your will when you go through major life transformations, and divorce is one of the most disruptive life transitions. By updating your will you are avoiding future problems with loved ones over your estate and ensuring your wishes are carried out exactly as you intended. A little bit of planning now will avert potential disaster down the road.
What is a codicil? Let’s start with the basics to be clear on the legalities. A will is the legal declaration of a person’s wishes regarding the distribution of his or her property after death. Your will covers issues such as dictating whom will receive what assets and money from you, guardianship of your minor children, and how you wish your remains to be dealt with after death. A codicil is a formal, written revision to a will that amends the will by adding to it, subtracting from it or changing it in some way. In other words, a codicil legally updates your will to reflect any changes that you want made after the will was originally written.
When should I change my will? It is advisable to change your will when you have a life-changing event, a change in your financial situation, or a change in your beneficiary or beneficiaries. Your will should name an executor, the person you assign responsibility for carrying out the instructions in your will. Your executor will be your representative to the probate court, and will take charge of your affairs upon your death. Be sure to take into account applicable tax law when crafting your will to maximize the transfer of your wealth to your inheritors.
Does my divorce invalidate what I left to my ex-spouse? In most states once a divorce is finalized the law automatically revokes any provisions in your will that favor your ex-spouse. However, the best advice is to leave nothing to chance and to update your will with a codicil. If you fail to redirect the property originally bequeathed to your ex-spouse, then that property will either fall into the “residue” clause, or if there is none, it will pass to your intestate heirs. Avoid any potential complications by updating your will; it is well worth your peace of mind.
How do I change my will? There are two ways to make a change to your will.
- You can revoke your current will and write a new one, or:
- You can amend your existing will by crafting a codicil. A codicil is a formal supplement to your will. It requires the same process as executing a will—it must be written and signed by you and your witnesses. If you have a long list of changes to your will, consider revoking your old will and create a new one.
How do I revoke my will? By choosing to revoke your will you completely invalidate it, as if it was never created. You can revoke your will by two methods.
- Write a new will that includes a statement saying you are revoking your previous will.
- Physically destroy your will. If you choose to physically destroy your will (burn it, shred it, cut it up, etc.), be sure to destroy the entire will to avoid running the risk an ineffective revocation. For example, if you write “void” on your will then write it legibly and boldly across every page, not just the first page. And, make sure all copies of the will are so amended or destroyed.
Can I simplify things and just add a new clause at the end of my will instead of executing a codicil? No, that is not possible. Since the additional details were not present when the will was executed they are not legitimate. If you add anything new to the original will then you must re-execute it for the new information to be valid under the law. In short, it must again be signed by you and your witnesses.
If my attorney has my will can I have him or her shred it to revoke it for me? The only way that your revocation will be valid is if your lawyer destroys the will on your behalf with you present. Phone instructions, even if you are on the phone at the time the action is taken, are invalid.
Tips for updating your will:
- If you add a codicil to your will be sure to keep it with your will so it can be easily found.
- When writing a new will include a statement saying you are revoking all previous wills and codicils, that way if you forgot to destroy a copy of the old will or codicil you are covered. It is clear that this document is the most current and valid statement of your wishes.
- If you write a codicil, then later change your mind and want the terms of your original will reinstated you can revoke the codicil, making the terms of the original will valid once again.
- If your will was not properly executed (for example, it was not signed by witnesses, only you), and you write a codicil and execute it in accordance with the law, then the previously invalid will is made valid by the codicil being executed properly.
- It is wise to make changes to your will when you get married, divorced or have or adopt a child. You should also revise your will if you have a substantial change in your assets or financial situation, for example you sell or buy a house or business. It is a good idea to update your will if one or more of your beneficiaries pass away, change the status of your relationship to them making them no longer a desirable beneficiary (i.e. a divorce or have a falling out) or you have additional beneficiaries you want to include. You may also want to add a codicil to your will under the following situations:
- You want to add or change the nomination of any executor, trustee or guardian.
- You have Digital Assets you did not address in your existing will and want to include them now. (Digital assets can include online accounts or files stored on a computer or server, such as email accounts, blogs, social media accounts and photo and document sharing websites.)
- You wish to appoint a Digital Executor to handle your Digital Assets.
- You want to modify terms or restrictions on the receipt of a bequest.
Divorce is a time of seemingly endless changes and it can be exhausting to keep up with all the legal, financial and parenting changes during the transition. The most prudent advise – seek out an lawyer’s help if you need it, and update your will as a result of your divorce. You want to be certain that you are not leaving your loved ones in a prolonged legal battle, with a guardian you no longer find appropriate, or without the possessions and/or money you want them to have after your death. The peace of mind that comes from knowing that in the event of your death everything has been planned and will be executed according to the very last detail is truly priceless.
- As we mature we come to understand Life is not always fair. Often the spoils of competition are awarded to the most popular, the most well-connected and most well-funded, regardless of who is more deserving. Putting in the longest hours, being the most qualified or talented does not guarantee success.…