Be Careful Changing Your Estate Plan

Some changes people make to estate plans can have unintended results

If an estate plan isn’t kept current, it can become useless. You always want to make sure your will is up-to-date with your wishes, your financial circumstances, and current tax and other laws.

However, it’s important to keep in mind that changing a will is not a “do-it-yourself” process. Generally, any changes to your will or trust must be made with the same formalities as the original document itself, including witnesses and signatures.

In the past, some people have tried to make changes to their will by simply crossing out some parts and writing in others. Not only are these changes unlikely to be legally effective, but in some circumstances, they can result in the entire estate plan being declared invalid. At the very least, they can result in a lengthy and expensive court proceeding to sort out your wishes.

“Not only are these changes unlikely to be legally effective, but in some circumstances, they can result in the entire estate plan being declared invalid.”

I recall a case I was involved in many years ago where a woman took a pen to her original will, only her changes resulted in the opposite of her clear intent. The will had left a gift of $5,000 to her church. She crossed off the $5,000 and wrote $10,000 directly above it. She initialed her change.

Michigan law held that she properly deleted the bequest with her pen. However, any additions required her full signature, date, and witnesses. Thus, the church got nothing! Now, this was clearly not what this woman had wanted - but the law rarely looks to what someone might have intended.

The simple lesson is do NOT take a pen and start making changes to your estate plan without professional advice.

“The simple lesson is do NOT take a pen and start making changes to your estate plan without professional advice.”

If you only want to make a simple, specific alteration – such as naming a different executor or updating a child’s name that has changed – a codicil or amendment may be appropriate. A codicil is a separate, short document that makes an amendment to a will. The benefit of a codicil is that it is usually cheaper and easier than redoing the entire will. The same document attached to a trust is simply called an amendment.

However, a codicil or trust amendment still has to be formally dated, signed, and witnessed. Be sure to always keep this change with the estate plan so your personal representative can find it easily.

If you have a significant change to make to your will, such as adding or removing a beneficiary, or if you have more than one change to make, it’s generally better to simply restate the will or trust. The updated document should include the date and a clear statement that all previous documents are revoked.

As always, before you make any changes, you should consult with an attorney.