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Cleaning Your Legal House: Is It Time to Update Your Will?

Cleaning Your Legal House: Is It Time to Update Your Will? by Tom Sciacca

{Read in 6 minutes} The changing of the calendar is often a catalyst for many people. At the beginning of each new year, many clients take inventory of their legal affairs. They question whether their existing documents need to be updated, with their Will topping the list.

A well-drafted Will anticipates various changes in a client’s life, and often does not require periodic updating absent a major life event. It is essential, however, that clients periodically review their Wills to ensure that it still fully reflects their wishes. Whether you drafted your own Will or engaged the assistance of an attorney, I advise all of my readers to review their Wills every couple of years. What are you looking for? Here are my suggestions:

1. Does the Will provide for people you no longer maintain a relationship with? If you’ve had a falling out with a major beneficiary of your Will or your nominated Executor, you need to revise your Will. Nothing is more upsetting than seeing someone you can no longer stand the sight of becoming financially pleased by your death. Unfortunately, I have seen this happen numerous times in my career.

It’s important to keep information regarding beneficiaries up-to-date, particularly in romantic relationships. New York law provides for some revocatory effects of a divorce which may completely eliminate the person’s interest under the Will. However, if the parties were living together and never married, the end of a relationship between an unmarried couple does not automatically terminate the bequest. Revise now – it may even be more satisfying then when you finally deleted his or her number from your phone!

It’s important to note that if you’ve named these people as beneficiaries elsewhere besides in your Will (for example, a life insurance policy, or a retirement account), it’s essential to update those documents as well.

2. What about beneficiaries who now have different names or are now deceased? You don’t need to re-sign a Will if a beneficiary’s name has changed. For example, if you left money to someone but their name has changed incident to marriage (or divorce), there’s no need to update the document to reflect the new name—the Court should probate the Will without any problems, requiring only an Affidavit from your Executor that the person identified in the Will is the same person with a different name.

Similarly, you may have beneficiaries who are now deceased. Make sure that you’ve made a provision for what would happen if those beneficiaries died before you. Most good lawyers will ask you about this, and your finished documents will address one or more alternate beneficiaries. If your Will accomplishes this, great! If not, it may be time for revision.

3. Does your Will dispose of all of your assets? Often, people try to itemize assets in their Will, particularly when it comes to bank accounts. For example, I’ve seen Wills that pair specific account numbers at specific banks to specific beneficiaries. Banks open, close, and merge into other banks, which may make such intentions unclear. If you have done this, make sure that the bank name and account number you’ve referenced are still accurate. For this reason, I generally steer clients clear of doing this in their Wills.

Even if you haven’t done this, look for a residuary clause in your Will. A residuary clause is a paragraph that identifies what happens to the balance of your assets after paying funeral costs, expenses of administering your Estate, any debts you’ve left behind, and all of the other bequests in your Will. Essentially, it is a catch-all “safety net” that ensures full distribution of all of your assets. If you don’t have a residuary clause, and your Will does not dispose of everything you own, anything left will go to your next of kin—whether you want that or not.

Finally, please remember that a Will only disposes of assets that do not name beneficiaries. Those assets that do name beneficiaries — such as many life insurance policies, retirement accounts, joint accounts, jointly-owned real estate, etc. — pass automatically to named beneficiaries regardless of the terms of your Will. For more information on this, please see my previous blog entry here.

4. Is your Executor still the appropriate choice? An Executor plays a very important role in your Estate. They offer the document for probate, collect your bank accounts, and go through your personal belongings for purposes of distribution, donation, or discarding. They are ultimately accountable to all of the beneficiaries and the Court for everything that is involved in your Estate. Is the person still willing and able to do this?

If the Executor is deceased, see if you have named an alternate Executor. Also, it is essential to confirm that the Executor is eligible for appointment by the Court. People who are ineligible are generally people who:

  • Are under age 18;
  • Lack the capacity to serve as the Executor (such as people who suffer from diminished capacity or a severe intellectual disability);
  • Have been convicted of a felony; and
  • Are not U.S. citizens and do not reside in the United States. (Permanent residents holding a green card are okay.)

NOTE: The same qualifications hold true for other Fiduciaries, such as Trustees or Guardians for your minor children.

If your Executors are deceased or ineligible, it is time to revise.

5. Did you sign your Will properly? New York State law requires that certain formalities be met when a person signs their Will. Generally, a Will needs to be:

  • Signed at the end of the document and in front of two disinterested (non-beneficiary) witnesses who were at least 18 years of age at the time they signed;
  • Signed by the witnesses, preferably at the same time and in the client’s presence;
  • Identified by the client as a Will, with the client asking the witnesses to serve as witnesses to the Will.

Take a look at the signature page(s) of your Will – is it obvious that all of these things happened? Look for (1) a paragraph above the witnesses’ signatures, (2) an Affidavit contemporaneously signed by the witnesses and notarized, or, ideally (3) both. If it is not obvious to you that you met all the formal requirements, it will also not be obvious to the Court reviewing your Will after your death.

Unlike a loaf of bread, a Will doesn’t go stale if it still reflects your wishes. Go through your Will with these checks in mind before determining whether or not your Will is still good. If things need to be changed, it may be time to update. We can help with that. Contact us today.