In what will be one of my last postings of 2012, which I am quickly coming to see as a year of awakening and learning, some common questions about inheritance and wills keep cropping up that I’d like to answer in this space.
Question: I wrote a will over 10 years ago, but would like to make some changes. How do you go about changing a will?
Answer: Assuming you have the legal capacity to make a will, and what you are looking to change is not the result of fraud, undue influence or duress, there are a couple of options available to you.
You can execute an amendment to your existing will, changing or updating specific provisions. This is called a “codicil,” and generally works best in situations where the changes you are making are relatively simple and straightforward, such as updating your choice of executor (i.e., personal representative) or adding a beneficiary.
If your situation is more complicated, however, as in the case of divorce or remarriage, it might be a better idea to replace your existing will with an entirely new will. If you do choose this option, it is very important to make sure all copies of any existing will(s) are destroyed. Your new will should also include language establishing the new will as your last will and testament, as well as language revoking all prior wills and codicils.
In any event, whether you choose to update your existing will or replace it with a new one, the resulting document has to be executed as required by the laws of your state. That typically means the document must be signed in the presence of two disinterested witnesses who also sign the document. Those witnesses are representing that you are who you say you are, and that you are of sound mind, signing voluntarily, and under no constraints or undue influence.
Question: Speaking of “interested parties,” can a husband and wife serve as witnesses to my will?
Answer: “Interested parties” refers to people who stand to gain something from the will. If a person stands to gain from a will, they generally cannot serve as a witness to the will’s signing. But short of that limitation, there is nothing that would preclude a husband and wife from acting as witnesses to a third party’s will. If the husband and wife are not related to the testator in any way, and do not have anything to gain from the will, then as long as they are not minors, there should be no problem with them witnessing and signing the will. It is not uncommon for people to use their neighbors or close friends as witnesses to their will.
Question: Does a stepchild have any claims to any assets left behind by a deceased parent?
Answer: You are free to name stepchildren as beneficiaries under your will or trust. However, if you die without a will, unless they are formally adopted, stepchildren are not considered legal heirs, and cannot inherit any of your assets directly. Keep in mind, though, that state law will determine how your assets are distributed, and those adult stepchildren may ultimately be the recipients of your property (by inheriting from your surviving spouse).
A common example is a husband whose stepchildren are the biological children of his current wife. If the husband decides to create a will leaving all of his assets to his current spouse outright, it is possible that those stepchildren would inherit through their mother’s will or through the remainder of her estate.
There are strategies that can be employed to ensure that these children do not receive any of your assets, if that is what you wish. But it is situations like this (where there are multiple marriages, or children from prior marriages, etc.) that make it that much more pressing to learn what options may be available to you so you can put an estate plan in place that best meets your objectives as they pertain to inheritance and wills.
Question: If my husband and I die in the same accident, how do our separate wills operate?
Answer: How your property passes depends on whether those wills deal explicitly with simultaneous death situations.
Under the Massachusetts Uniform Probate Code, for example, the governing instrument (i.e. the will) would prevail in determining how to handle transfers between co-owners in the event they die in the same accident or within a specified period of time.
These clauses typically specify that if you and your spouse die under circumstances where the order of death cannot be determined, your spouse will be deemed to have died before you. Identical clauses would be included in each spouse’s will. Since both of those wills would be probated separately, this allows each spouse’s property to pass as they wish under each of their wills.
Conclusion
You should consult with an estate planning attorney in your state to see how to handle your specific situation and to set up an estate plan that truly achieves what you desire.
As always, contact my office if you are a Massachusetts resident with questions about inheritance and wills, or if you are looking to review, update or create your estate plan.
