Even if you have a valid will, you may need to draft a new one for a variety of reasons. A will is an essential part of planning for the future. But don’t think creating a will is a one-time proposition.
Some Reasons You May Need to Draft a New Will Are:
1. Deaths – If individuals named (such as beneficiaries, guardians, trustees or executors) have died or they become incapacitated, a will should be reviewed to ensure changes are not needed.
2. Assets – Revisions may be needed if the value of assets has increased or decreased significantly, or they are no longer owned. For example, if you specifically leave your home to one of your children, and later sell it, you may want to change the distribution of your other assets.
3. Marriage – Wedding bells usually signal the need to review a will. Which assets should pass to your spouse? Are step-children involved? If this is not spelled out in a will, the state will decide. Without a will, in a community property state, like Texas, a spouse automatically inherits his or her half of all community property. In most other states, a spouse may receive one-third to one-half of the estate, absent any other directions in a will.
Also, keep in mind that an unmarried couple living together may want to leave assets to each other but in order to make an inheritance happen, it must generally be spelled out in a will.
4. Divorce – In Texas, a divorce automatically revokes those provisions of a will concerning an ex-spouse. As a result, if you get divorced, it’s best to have a new will drafted. For instance, you might have your former spouse removed as a primary beneficiary. In addition, you may want to change the beneficiary of your life insurance, 401(k), pension or any existing IRAs. Consider the use of a trust if children from a previous marriage are involved.
You may also want to change your will if one of your children gets divorced.
5. Births – Once parents have children, you may want to consider updating your will to include the names of children. Also, you want to name guardians to care for the children in the event the parents die prematurely. (However, the naming of guardians is not binding on the probate court.) Grandparents might wish to draft a new will concerning the distribution of assets after children are born. Again, the use of a trust may be recommended.
6. Retirement – This event may also trigger the need to make changes to an existing will. For example, many retirees sell their homes and move to other states. But state laws can vary widely. Furthermore, individuals may consider a power of attorney that enables someone else to act on their behalf medically or financially in the event of incapacity.
7. Tax law revisions – The Internal Revenue Code is regularly changed. In fact, the estate tax rules have undergone significant changes in recent years and more changes could occur. A will should be reviewed to take advantage of maximum tax benefits that exist today so it may have to be updated if tax laws change.
Note: In some cases, a will might be amended with a “codicil.” However, in many cases, it is best to draft a new will. Consult with one of our firm’s estate planning attorneys if you have any questions on how to proceed.
While most people realize they should have a will, they still tend to procrastinate over having it done. Most attorneys can have a will prepared within days of the initial meeting, which will alleviate the many problems your loved ones will face if the time is not taken to get your affairs in order.
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Where to Store an Original Will
Before it’s too late, people should let someone know where their original will is stored. If one can’t be found after a person dies, a court may decide it was destroyed.
It’s a good idea to keep the original in a safe deposit box or a fire-resistant and high-heat rated home safe. A copy should be kept in other important papers at home, and other copies may be shared with named executors or other trusted individuals. Some states require that safe deposit boxes be sealed after the renter dies, but in Texas, a safe deposit box can be opened to remove a will to be filed with the Court.
Other options include:
- Have your attorney and/or your accountant retain the original will.
- Record an original will in the office of the county Clerk.
- Have your executor keep the will.
- Store the will at home. Of course, it could be lost, destroyed or discovered by an interested party who could deliberately destroy, conceal, or alter it.
Consult with one of our firm’s estate planning attorneys if you have any other questions about wills or estate planning.