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How Should I Amend My Will?

A last will and testament is not carved into stone. As you experience major life events, you will likely need to revise or update your will many times. If you get married, you’ll want to name your spouse as an executor or beneficiary. Conversely, if you get divorced (or you outlive your spouse) you may want to remove your former spouse from your will. You may have additional children after you sign your will or come into a specific item of property–even a business–that you wish to leave to a specific person not mentioned in your original will. All of these cases require a means of changing your existing will to reflect new circumstances.

The traditional method for amending a will is a codicil. This is a written amendment executed in much the same form as the original will. For instance, the “First Codicil to the Last Will and Testament of Mary Smith” might delete a specific bequest to a sister whom Mary is no longer on speaking terms with. Mary would sign a codicil noting the deletion while reaffirming all other provisions of her original will. And like the will, Mary must sign the codicil in the presence of two witnesses who can attest she has the capacity to execute such a document. The will and the codicil then effectively become one document.

In theory, Mary could execute as many codicils as she wanted, changing the terms of her will every year or even every month. But she can just as easily skip the codicil and sign a new will.
When you execute a will, you revoke any previously signed will. (This is why it is referred to as a “last will and testament”.) It’s just as easy to prepare a revised will reflecting your intended changes as it is to sign a codicil to the original. The execution and witnessing requirements are the same.

Codicils may lead to confusion among your heirs, and even probate courts, as to your true intentions. If you execute a codicil some years after the will it purports to amend, the courts may have difficulty deciding just how much of the original will is still valid. If the codicil itself is poorly worded, the remainder of the will may cease to make sense at all.

In most cases it therefore makes sense to prepare and sign a new will. Keep in mind, it’s not just changes in your life that may affect your original will but changes in the law. As we saw in the recent “fiscal cliff” negotiations in Congress, tax laws are subject to frequent change.
Most wills contain boilerplate clauses tailored to the laws of the moment. As those laws change so should your will. That’s why, even if you’re not facing a major life event, it’s important to periodically review your will with a qualified San Diego estate planning attorney, to ensure that you’re kept up-to-date on tax and other relevant laws. If you’re looking to revise your last will and testament, please contact the Law Office of Scott C. Soady at 1-877-435-7411.

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