Changing, Amending or Revoking a Last Will With a Codicil or Other Means
Although a will is written during the lifetime of its maker, it is testamentary by nature; in other words, it takes effect only upon the death of its maker. Therefore, it is a changeable document, one that can be amended, altered, or revoked a number of times prior to the maker’s death. Many wills are revised by the use of a codicil, a written instrument that must be executed according to the same formalities of New Jersey law as the original will. If it is revoked prior to the maker’s death, and another codicil or valid last will is not executed to take the place of the prior will, the decedent’s property will be transferred according to the laws of intestate succession as adopted in New Jersey. Intestate succession means dying without a will.
However, a codicil is a more convenient and simpler method of amending, changing and revising a will. A codicil is a relatively simple document generally only one or two pages in length and is not as costly as having an entire will redone. For these reasons, codicils are frequently used to make changes to a will at a reduced cost.
Amending or Revoking a Last Will and Testament By Use of a Codicil
When Should Your Last Will Be Updated or Changed?
A will can and should be revised if any of the following situations occurs:
- Changes in your family situation (marriage, divorce, birth or death of individuals, adoptions, etc.)
- Changes in your business situation (the sale or acquisition of an asset, an increase or decrease in the value of a business asset or closely held business)
- Changes in the tax laws that could result in significant estate tax savings if implemented; or, conversely, detrimental estate tax liability that could result if the provisions of the will are not amended
A will always can be revoked, amended or changed at any time according to New Jersey law. There are a number of methods by which a will can be changed or revoked, but not all states recognize all of the methods permitted in NJ. Therefore, it is advisable to consult with a New Jersey will attorney to see how a will amendment or revocation is permitted in New Jersey.
The most frequent means of revoking a last will are the following:
- Formal revocation/cancellation: This process of revoking a last will involves a formal document which is captioned as a revocation of a prior will. It is usually a signed, witnessed statement of revocation. Frequently, the cancellation of a preexisting will occurs in a later written instrument, which contains an express statement that all previous wills signed by the maker are cancelled and revoked at the time the document of cancellation is validly executed.
- Revocation by destruction or by being misplaced (lost): This process of revoking a last will involves the tearing, burning, or obliteration of a will by its maker. The destruction must be accompanied by an intention by the maker to have the entire will revoked. If an intention to revoke the will cannot be proven, then the will is still deemed to be a valid instrument. Thus, in cases of individuals who have had their wills destroyed without an intention to revoke the will (e.g., floods, natural disasters, house fires, lost, etc.), the will is presumed to be a valid, binding instrument even if it has been destroyed. In cases like this, the court will attempt to follow the provisions of the will if the contents of the will can be proven from another source (e.g., an unsigned copy of the will kept by the attorney).
- Revocation by execution of a subsequent or later last will: This is perhaps the most frequently used method of cancelling a prior will. In most circumstances, this involves a formal declaration or statement in the subsequent will that all prior wills and codicils are revoked as of the date the subsequent will is signed. It is important for an individual to expressly revoke any and all prior wills upon the subsequent execution of another will, since a person may only have one validly executed will. If neither will is dated so that it cannot be determined which will supersedes the other, neither document will be given legal effect and the estate of the deceased must be distributed according to the laws of New Jersey intestacy.
Sound like you need to change your Last Will? If so, call our office today. Ask for Mr. Niemann to personally discuss your questions and individual situation toll-free at (855) 376-5291 or e-mail him at email@example.com.
Written by Fredrick P. Niemann, Esq. of Hanlon Niemann & Wright, a New Jersey Last Wills Attorney