How (And When) You Should Update Your Last Will & Testament

Updated

Attorney, distinguished law professor

Cake's blog posts contain affiliate links and we earn commission from purchases made through these links. As an Amazon Associate, we earn from qualifying purchases.

Executing a will can be a great relief. Many people delay making one, perhaps not knowing how to create it, not wanting to hire an attorney, not knowing how they want to distribute their property, or feeling that it is not time to have one yet.

Jump ahead to these sections:

According to AARP, 60 percent of Americans do not have a will. But the many who do have a will know that having one is an important step in planning for the effective administration of your estate when you pass on.

When you finally sign your will, you may even feel a great sense of security knowing that you are able to provide for your family after you are gone. You might find relief in knowing that you may have eliminated family squabbles that might have occurred had you not set out your wishes in writing. And you take pride in the fact that your property will be distributed to your loved ones in a meaningful way that you deem appropriate. For many people, however, that will not be the only time they execute their will.

A will is not always a “one-and-done” deal. You should review your will every one to two years and consider what, if any, updates or amendments to your will are necessary or appropriate. Below are a list of reasons why you might consider updating your will and how to go about doing that. 

How Often Should You Update Your Will?

There is no hard-and-fast number for how many times or how often you should update your will. Many legal authorities in the field recommend updating your will at least every five years. Others suggest you should update it every three years. However, the best advice is to update your will as many times as it needs to be updated.

Sure—having too many codicils to a will can cause complications (a codicil is a supplement to an existing will in which you can add to or amend your will. It then becomes part of the existing will as of the time the codicil is executed).

But if your attorney advises you correctly and you follow the proper procedures for updating your will, you can avoid any confusion that others might have about which will or codicil is the most recent and effective one.

ยป MORE: Don't skip these commonly forgotten post loss tasks. View our guide.

 

What Are the Signs You Should Update Your Will?

You are likely to experience a lot of financial and personal changes between the time you execute your will and the time you pass on, which is when your will ultimately becomes effective.

Many of your life changes can prompt you to consider changing information in your will. Here are some common reasons why you might consider updating your will:

Your financial circumstances change

Depending on how long you live after executing your will, your financial circumstances could change because of the following:

  • Your health needs
  • New living arrangements
  • Gifts
  • Donations to charity
  • Tax changes
  • Financial windfall (inheritance, lottery, etc.)

Your circumstances could change positively or negatively for any reason. What is important is that if your circumstances change significantly and affect your estate plan, you may need to update your will to reflect these circumstances.

You have a subsequent child

If you have a child after you already have a will, you likely will want to update your will to include your new child.

Often this can affect your decisions about distributing property to those already named in your will, especially if you already included other children in your will.

You are in the process of getting divorced or have gotten married or divorced

If your spouse is named in your will as your executor or, more commonly, as a beneficiary and you recently got divorced or married, or are planning to divorce, you probably want to update your will to omit any provisions pertaining to your spouse.

There are some jurisdictions that automatically exclude spouses from wills upon a divorce. This happens “by operation of law,” which means that your spouse is automatically excluded upon your divorce. If you want to keep your spouse in your will after your divorce, you would need to re-execute your will after your divorce to indicate that you did not want your spouse omitted by operation of law.

Likewise, in many states, if you draft your will a month before your wedding and include your future spouse in that will, referring to them as your husband or wife, your reference to your future spouse will be omitted from the will when you die. If you want your future spouse to be included in your will after your wedding, you may need to draft a new will that includes them labeled as your spouse after the wedding. 

Changed circumstances of your beneficiaries

It is not uncommon that beneficiaries to whom you leave property to also experience changed circumstances after you execute your will. Depending on their circumstances, this may affect your decisions about what property you leave them or how you leave it to them.

For example, suppose you leave money or property to a beneficiary in your will, and that beneficiary becomes addicted to drugs or has an alcohol or gambling problem.

Unfortunately, the likelihood of them being responsible with any inherited property becomes slim. In this case, you may want to amend your will to give the property to someone else or put the property in a trust and restrict the distribution of the property until a time when the beneficiary proves to be drug-free and responsible.

Changes in the tax laws

One factor that is usually very important in your estate plan is taxes. Estate plans are often designed so that you receive the best tax advantages when passing on your estate upon death. This includes what you put in your will. 

As you may or may not know, tax laws change every year, and they also include the tax laws that refer to gifts and estates. It is often difficult to do on your own, but it is important to know how tax laws change each year and how these changes could affect the distribution of your estate in your will.

An estate or tax-planning attorney can advise you of any changes in the tax laws and how they might affect your will. You can then determine if you need to update your will based on the new tax laws.

Your executor or a beneficiary dies

Your executor is the person you name in your will whom you want to administer your estate when you die. It is always good to name a substitute executor in case the executor you named first dies. If that happens, or if you did not name an alternative executor, you will want to update your will to either appoint another executor or to name another alternative executor.

Likewise, if a beneficiary such as your spouse dies before you, you may need to amend your will to name another beneficiary. However, you may not want to change it if you want the beneficiary’s children (perhaps children from a previous marriage) to receive your property or for it to pass through your spouse’s will.

You lost your will

If you drafted an original will many years ago, there may be a chance you don’t remember where you put it or to whom you gave it for safe-keeping. If you are unable to find your will, it is probably a good idea to execute a new will that expressly supersedes any and all previous wills. If your original will is later found, it will be of no effect. It will be null and void because the new will that you create will be the one that is submitted to the probate court when you die. 

Of course, if you had updated or amended that will, or executed a new will before you died, then the subsequent amendment or new will becomes the effective will submitted to probate. It is recommended that you always leave the original copy or version of your will with your attorney or with relatives so they are able to access it when they need it.

You should give copies of your original will to relatives, friends, and your physicians if your will contains end-of-life directives.  

How Do You Update Your Will?

There are many occasions when you might want to update or amend your will, as referenced above. If you had to execute your will with witnesses and notaries every time you wanted to add a piece of property or change a beneficiary, this could get very tedious and expensive.

Although executing a new will is always an option, most states offer two other methods for updating or amending a will that can be easier, quicker, and less expensive.

Draft a codicil

A codicil, which is basically a supplement to a will, is an effective tool to either update your existing will or revoke (terminate) the previous will. For a codicil to be valid, you still must follow all the formal rules that you would follow for validating an original will, including having witnesses, signatures, and a notary if necessary. 

The benefit of a codicil is that you do not have to redraft your entire will. Instead, you may simply include the changes you want to make to the existing will by clearly referencing the previous will in your codicil expressing the changes you wish to make. This is called “incorporation by reference.” 

If you do not wish to add to the previous will but, rather, wish to terminate or “revoke” it, then you also can accomplish this with a codicil by expressly stating in the codicil the traditional phrase: “With this codicil, I hereby revoke all previous wills and codicils heretofore made by me.” You may then include any new provisions you wish to have. 

Using a codicil to revoke an existing will, however, is essentially the same as simply drafting a new will.   

Create a “legal list”

An even simpler method for updating a will is to create a “legal list,” provided it is recognized in your state and appropriate to do so. A “legal list” is exactly what it says it is—it is a list of property, and possibly beneficiaries whom you want to take that property. With a legal list, you can continue to add to or subtract from this list as you continue to collect and dispose of property before you die. 

For example, suppose you have a personal library in your home that is filled with classic, first-edition books and is of significant value. You decide that you want to include your books in your will, but you want to distribute different books to different people when you die. Your will can include whichever books you want to include. However, after you execute your will but before you die, you continue to collect rare books, one by one, and you want to include each of the new books you acquire in your will, distributing each book to a different person. 

In this circumstance, it would be terribly burdensome and inconvenient for you to have to execute a new will every time you acquire a new book. However, a legal list can allow you to simply record the name of each book on a separate list as you acquire it and designate the person to whom you want to leave each book. 

You do not have to witness or sign the list each time you add to it. The important step, however, is that you must make reference to the separate “legal list” in your will, describing what is on the list and where it can be located. In this way, you can add or subtract items from the list without re-executing your will each time.

The difference between “incorporation by reference” and a “legal list” is that, to incorporate something by reference, the incorporated writing must be in existence at the time of the incorporation. With a legal list, the list does not have to be in existence when you write your will. You may reference the list in your will even though you have not yet started collecting books or making a list.

Updating Your Will Is Critical, But It Doesn’t Have to Be Complicated

A comprehensive will can be best described as a summary of all the property you have acquired in life that expresses what you want to do with it when you die. Depending on how long you live after you execute your will, you are almost certainly going to experience financial and familial changes in your life that may affect your existing will.

For that reason, it is important to reassess your will on a regular basis—at least once every three to five years, depending on what life-changes you experience. If changes in your life significantly affect your estate plan or your intentions for the distribution of your property upon death, then you should consider updating your will in response to those changes.

By either drafting a new will, adding a codicil, or adding a legal list, you can rest easier knowing that you have properly accounted for any changes or things you’d like others to know when distributing your property upon death.

If you're looking for more help with estate planning, read our guides on the best online will makers and how to find out if someone left you money after they died.

And if you're interested in unique legacy options for yourself or a loved one, you can consider a custom urn from a store like Foreverence or even have a memorial diamond made from ashes with a company like Eterneva.


Sources

  1. Walls, Barbranda Lumpkins. “Haven’t Done A Will Yet?” Money: Saving & Investing, AARP, 24 February 2017. www.aarp.org/money/investing/info-2017/half-of-adults-do-not-have-wills.html

Icons sourced from FlatIcon.