You never know what might happen tomorrow, so if you don’t already have a will in place, you should write one up immediately. Even if you already have one prepared, you might consider setting aside some time to review it every so often. That way, you can ensure it’s up-to-date, and that it still aligns with the way you wish to look after your loved ones after you’re gone.
The fact is, circumstances change, and wills need to reflect those changes. Did you recently divorce, remarry, have a new child, or did your named executor pass away? In all of those scenarios, you’ll want to modify your will. But doing so might lead to several issues. Do you need to write a completely new version, or can you simply amend the existing one? If you do write a new one, how do you ensure that it supersedes the old one? Put simply, is it legally watertight?
We’ve written this clear and concise guide for Californians that want to modify their wills. We’ll explain the exact process, clarify the legal terminology, and outline common mistakes to avoid. Read on to ensure your will delivers your desired legacy.
A will is an essential element in estate planning, detailing what happens to your property and assets when you pass away. If you die without a will (intestate), you might create some challenges for your loved ones. At best, they’ll experience financial complications, delays, and uncertainty. At worst, your assets may go to the wrong person, or your spouse may have to sell the family home. These scenarios could all unfold because you failed to plan properly and didn’t take the time to draft a will.
There’s a simple, threefold message here. First, if you don’t have a will, write one right away. Second, after that, review it every so often to make sure it’s still up-to-date and in line with your wishes. Third, if it’s not, modify it right away.
It’s easy to get confused around wills and the role of a power of attorney, but all you need to know is this: a will is for when you’ve passed away, whereas a power of attorney applies when you’re still alive.
With a power of attorney, you give someone else the authority to manage your affairs. There are various types of power of attorney, and for the most part, they tend to be applicable in one of two situations.
The first is where you want someone to manage your finances because you’re too busy or it’s not practical for you to do so; for example, when you move abroad for an extended period.
The second scenario is where you allow someone to take charge of your affairs if you become incapacitated. This is especially relevant for people as they grow older and more infirm, where they wish to hand over financial and medical decisions to a trusted contact.
The short answer is no. You don’t need a lawyer to update your will in California. But is it advisable? Almost certainly, yes. You don’t have to look very far for evidence of families arguing and falling out over wills.
The courts are full of cases with partners, ex-partners, and children of the deceased bickering over their inheritance, but the reality is often closer to home. Many families have endured bitter, long-lasting, and irrevocable disputes over a will or the lack of one.
The sad reality is that many of these issues could’ve been avoided if more care had been taken to draft or update the will. The best solution is to be guided and advised by a legal professional with a thorough and deep understanding of the area: in other words, by a trusted family law attorney.
When you move to update your will, essentially, you have two options. You can either modify the current version or rip it up and create an entirely new will. There are advantages and disadvantages to each approach, so let’s examine the two options.
A codicil is a legal term for an amendment to your will. If you’re only making a minor change - say you’ve had a third child, and you now want to split your estate three ways, or your named executor has died, and you want to add a new name - then a codicil is a quick, efficient, and inexpensive solution.
Just make sure the modifications are appropriately witnessed and don’t contradict any other conditions. Plus, attach any new pages securely to the original document. Things can get messy with multiple codicils, so a new will might prove to be a better idea.
If you’re making a series of significant changes to your will, you’re probably better off starting from scratch. A will with numerous additions, modifications, and crossings out has the potential to cause complications.
When you make a new will, it automatically cancels the old one, but you can make things crystal clear by starting with words to the effect that “this will supersedes all previous wills.” You might also consider keeping a copy of the old will with the new one as additional evidence of the legitimacy of the latest version.
A California will and trust attorney is perfectly placed to advise you on implementing any changes you need to make legally. In addition, they’ll ensure that any amendments you make are correctly executed, dated and signed, and conform with Californian state laws.
Family law lawyers are also knowledgeable in aspects of estate planning - not just for wills, but areas like trusts, power of attorney, and living wills too. For example, an experienced will and trust lawyer can facilitate the probate process and suggest tax-efficient ways of handling your legacy.
You can help ensure that your legacy is a happy one by carefully drafting and regularly reviewing your will. Marble’s helpful and knowledgeable team is ready to help you with this and any other aspects of estate planning if you want to make any changes. Call us now for a free initial case assessment.