Should There Be a New Will?

You may want to ask the person who wants you to serve as executor to make a new will.

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If someone wants you to serve as an executor, it’s a good idea to ask for a look at the will. You may see potential problems, and you might want encourage the person to make a new will. Especially if the will is old—and it’s not uncommon for people to let them sit around unchanged for decades—a new will might save you a lot of trouble down the road.

A new will is definitely needed if:

  • there's no valid will now, or
  • the current will doesn’t name you as executor.

It’s not enough for the person to tell you to handle his or her estate later on, when the time comes—you need a valid will that nominates you as the executor. Then the probate court, after the will-maker has died, can officially make you the executor.

When to Make a New Will

There are lots of other reasons to make a new will, too. If the will-maker has experienced any of these life events since making a will, it’s probably time to make a new one:

Getting married (or entering a civil union or registered domestic partnership). Most married people leave most or all of their property to the surviving spouse. If it’s a second marriage and there are children from a previous relationship, however, the arrangements will probably be different. It’s important to know that you can’t completely cut out a spouse, without his or her written consent. So even if the spouse is well taken care of with other property and is perfectly happy that the will leaves everything to the children, make sure there’s a written consent.

Acquiring a new partner. Unmarried partners, no matter how committed the relationship, inherit nothing. (Partners who enter a civil union or register their domestic partnerships with the state, where either is available, are generally treated like spouses for purposes of inheritance.) The will should spell out what property is being left to the partner.

Getting divorced. In most states, divorce automatically nullifies any will provisions that leave assets to a former spouse or name him or her as executor. But not every state has this rule, so divorce is always a reason to make a new will. The will-maker may also want to change bequests to the former spouse’s children as well.

Having or adopting a child. If there’s a new child, there should be a new will, even if property isn’t left to the child directly. A will is necessary to name a personal guardian for the child—someone who would raise the child if neither parent could.

Buying or selling large assets. If the person now owns significantly different assets—a home, a business, a timeshare, and so on—than when the existing will was made, it’s time for a new will.

Moving to or from a community property state. If the will-maker is married, moving to a new state could have changed his or her property rights if the move was from a community property state to a common-law property state or vice versa. A will from another state is still valid, but it’s a good idea to make a new will taking into account the law of the new state.

If you need to create a new will, see the Making a Will section on Nolo.com for lots of information and do-it-yourself products that can help.

New Will or Codicil?

There are two ways to modify a will. One is to add a "codicil" to it, revoking, changing, or adding to the original will. Codicils were more popular when a new will had to be typed up by hand, but are rarely used today. Codicils can create confusion if it’s not clear exactly how they are supposed to change the original will, and they’re just as much trouble to make because they must be dated, signed, and witnessed just like a will.

The best course is just to make a new will, revoking the old one with a statement like this: “This will revokes all wills and codicils that I have previously made.”

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