After creating a will, life continues to happen. Children are born, family members die, needs change, and parents sometimes remarry. (Remarriage is a major reason to get a prenup, read more here.) In those important times, I am often asked, “Can I change my will?” Testators (people who make a will) want to know whether they have the right to change, revoke, or modify their will in accordance with their wishes.
I discuss the rights to change, alter, amend, or revoke your estate plan and the limited restrictions against it here.
(Although I am attorney, I am not your attorney. Nothing in this article creates an attorney-client relationship and should not be deemed legal advice. Instead, this article is merely informational and educational. You should discuss your specific circumstances and state law with your attorney.)
ESTATE ENTITLEMENT
I am a firm believer that everyone should discuss their estate plan –their will, their power of attorney, their end-of-life wishes, with their loved ones and family. I believe that this is a crucial step in enforcing your estate planning documents, protecting your wishes, and mitigating challenges or arguments. (To read more about talking to your family about your estate plan, click here.)
However, I am not a proponent of broadcasting your estate plan. I do not believe that every single person in the entire world is entitled to know what your final plans are.
Instead, I recommend that you share your estate plan only with the people who are necessary to implement it and share a general plan with your beneficiaries. This does not mean that everyone needs to receive a copy of your will.
Sadly, more often than I care to admit, children come to my office in true prodigal son fashion asking that they receive their inheritance NOW. They ask that I change property titles, that they receive a portion of their parent’s money, or that I divide the family business NOW.
When I ask them the basis for their request, they produce their parent’s will that often states that the prodigal child is a partial recipient of the assets at death. However, the clincher here is that the parents are still living.
To be completely clear, you have no right to an inheritance under modern law until the person leaving you the inheritance is actually DEAD. Until that point, the testator can amend, revoke, alter, or modify his or her plans.
YOU CAN FREELY REVOKE AND CHANGE YOUR WILL
With limited exception, after you create a will, revocable trust, power of attorney, or living will, you have the power to change it or revoke it as you see fit. (To read more about what you need in a complete estate plan, click here.)
I have clients who change their estate plan annually, biannually, or even monthly!
Some people make a hobby of changing their estate plan, and that’s their right!
Just because you have written out, signed, notarized, and witnessed your estate plan does not mean that you have to honor it. If a child becomes independently wealthy or cuts all ties from the family, it is not your obligation to share your estate. Your perogative is to change, modify, revoke, or alter your will.
If a family member dies leaving no surviving children, you might want to consider changing the deceased child’s portion to go to a spouse…or maybe not! If you remarry, you might want to include the new spouse, if you have a favorite niece or nephew, you might want to cut your children out entirely!
Further, you are the master of your own estate and its contents. Not only do you have the right to change your will and entire estate plan as you see fit, you also have the right to spend every single dime on yourself.
YOU CAN SPEND ALL OF YOUR MONEY THUS NULLIFYING YOUR ESTATE PLAN
If you have your eye on a vacation home, a cruise around the world, or a private pay retirement village, you have the right to spend your money without the input of your ultimate beneficiaries. Your children are not entitled to your wealth and cannot demand it from you.
ADEMPTION AND REDUCTION CHANGES YOUR WILL
Any specific pieces of property or amounts of money that are not in your estate at your death have adeemed. Ademption is when you can no longer honor every provision in your will because you already spent the money or transferred the property during your lifetime.
For example, if your niece has always appreciated a piece of artwork in your home, you might leave that specific item to her. If, however, over the course of your lifetime, you sell that piece of artwork, then she doesn’t get it. Her gift is no longer part of your estate simply because you no longer own it. Her gift adeems.
I like to use the example that I could make a gift of the Taj Mahal in my will, but because I don’t own the Taj Mahal, then I can’t actually give it away!
If we are talking about money instead of specific gifts, on the other hand, then the gift merely reduces rather than adeems. If you want each of your children to receive $1,000,000 but you needed to spend much of your money on your own care, then your children’s monetary gift would be reduced pro rata.
To be clear, I believe that you honor your legacy and your children to leave them an inheritance. But, DO NOT let your children, your family, or your loved ones believe that they somehow have a right over you just because you have a will. You have the right and the obligation to care for yourself first and then to consider your estate and beneficiaries.
LIMITED EXCEPTIONS FOR CHANGING YOUR WILL:
CAPACITY
In many instances, as a person ages, his or her mental faculties dull. Sadly, he or she is not able to appreciate the consequences of making a will. Further, he or she may be unable to reasonably determine who are the objects of his or her affection.
As dementia, Alzheimer’s, and other neurological afflictions take over a person’s mind, he may no longer possess the requisite capacity to make a will. Thus, at that point, not only could he no longer make a will, but he could no longer revoke, modify, or alter the will.
When a person can no longer identify what he owns, who he wants to give it to, or how he wants to divide it, then he can no longer make a will. He is no longer eligible to make, change, or revoke an estate plan. What he has stands. (To read more about how powers of attorney might have powers over estate planning, read here.)
WILLS AND CONTRACTS
In some other very limited instances, you may not have the power to revoke or modify your will. This happens in limited instances including when your will is also considered a contract or when you have a valid prenup. Other possiblities include requirements of a divorce decree or other contract that requires that you make certain gifts.
First, a will that is also a contract.
In some instances wills are created by contract. This can occur in situations such as remarriage or where one person owns pieces of a family business. In contractual wills, instead of entering into a prenuptial agreement (read more here), a husband and wife will enter into reciprocal wills.
These reciprocal wills often state that all of the assets be pooled and divided equally among the blended family. It may also state that the parties are not free to create a new or different will that leaves any children out of the inheritance.
In the event one of the testators later changes his or her will, then the children or beneficiaries who are left out of the later will can sue the testator’s estate. At that point, they might recover their contractual portion.
Second, contracts that control wills.
Similarly, spouses might enter into a contract that requires that they each make certain provisions in each other’s wills. If wife owns a small business and wants husband to manage it after her death, she might also require that he distribute it to her children at his death.
Courts may require that divorced couples create inheritance provisions in each other’s wills for the ex-spouse or the children. The court may issue a decree that the spouse or children have to be named as beneficiaries under a life insurance. Or, you may have a divorce decree that dictates certain property such as business interests or family land.
In these limited instances, your estate planning attorney will want to be sure that your divorce decree waives any rights of inheritance, that your pre-nup doesn’t require that you make certain gifts, and that your prior wills are not contractual.
CONSULT WITH AN ATTORNEY TO VERIFY THAT YOU CAN CHANGE YOUR WILL.
This again raises the importance of seeking counsel from a trusted estate planning attorney. A good estate planning attorney will not only ensure that your wishes are put in place but that your wishes are enforceable.
Your attorney will want to review your prior will, any applicable court orders, and any other applicable contracts. In general, all wills are freely revocable and modifiable up to death or incapacity (read more about powers at incapacity here). However, there are limited exceptions. So, as always, you should discuss your specific circumstances with an attorney.