As I’ve mentioned many times before in the past, it is important to make sure your estate-planning documents are kept up to date. That means you need to review them to determine what changes need to be made following major life events like marriage, divorce, birth, and death.
You should also regularly review your estate plan every few years, even if you haven’t experienced any major life changes, because you may change your mind about what you want to do, spend assets that you initially planned to pass on to your loved ones, or—as has recently happened—the law may change.
So, you know you should review and update your estate plan routinely. But if you decide you do need to update your estate-planning documents, how do you do so? The short answer is you contact your estate-planning lawyer, but the longer answer depends on what type of documents you need to update.
Updating a Will
Wills are revocable until you die. That means you can change your Will, or even replace it entirely, whenever you want. But how?
One option is to use what’s known as a “codicil.” This is a document that an estate-planning attorney can draft to amend your existing Will without revoking it. If you’re mostly happy with what your will says, and only want to update some aspects of it, a codicil may be all you need.
Another option is to revoke an existing Will and draft a new one. Under California Probate Code § 6120, an existing Will can be revoked by:
- Executing a new Will that revokes the existing Will expressly or by inconsistency; or
- Burning, tearing, canceling, obliterating, or destroying it with the intent and for the purpose of revoking it.
However, a new Will that is only inconsistent with a prior Will might be interpreted as only revoking it in part, and not entirely. So, the better practice would be to take both of the above steps: Destroying the prior Will and executing a new one.
Updating a Trust
Updating a trust can be more complicated than updating a Will. If your trust is a revocable trust (also known as a living trust), then you can change it or revoke it as long as you’re alive (and mentally competent to do so). As with a Will, you could simply execute an amendment to the existing trust documents, or sign entirely new trust documents. But, also as with a Will, you should make your intentions to revoke your existing trust clear.
However, if your trust is irrevocable, your ability to modify it will be greatly reduced or eliminated, depending on what powers the trust document gives you. Because of this, it is all the more critical that the irrevocable-trust documents be drafted with possible future changes in mind. (In other words, plan ahead!)
Updating Non-Probate Designations
Finally, the method for updating non-probate designations—like the beneficiaries under a POD account, retirement account, or life-insurance policy—will vary. That’s because these designations usually involve a third party, like a bank or insurance company, and that third party will have its own procedures for you to follow in updating your designations. Likely, updating your designations will involve submitting some standardized form to the third party.
Do You Need to Update Your Estate-Planning Documents?
Has it been a while since you spoke to an estate-planning attorney about your estate plan? Have you experienced any major life changes, or changed your mind about what you want to happen to your property after you die? Or are you simply curious whether your estate plan could be changed to take advantage of the recent changes in federal tax law?
If you answer yes to any of those questions, please give me a call today so we can discuss your options and give you peace of mind about your future.