If you have an estate plan, including your will, healthcare directives, etc. I salute you! Well done. That said, if you established all that more than just a few years ago, it might be time to review the documents. Many changes might have happened since you originally drafted it all; that’s why I offer a complimentary review of my clients’ plans every three years. An outdated plan can almost be worse than no plan at all. The following article by Robert J. Green for the Coeur d’Alene/POST FALLS is a good reminder of when and how to ensure your documents are current.
“Wills and trusts are typically changed over time as life circumstances, the state where you reside, or your desired outcomes change. It is actually the rare case where a person puts their estate plan together once and never changes it after that. What is important to understand however, is how to effectively and legally change your will or trust so that the changes are enforced per your wishes.
All too often I review will and trust documents upon which people have hand-written edits and changes to the original language in an effort to amend something. This is a very bad idea. I also often see handwritten addenda added to the front or back of a will or trust document that has been written and attached sometime after the signing of the original document. Also a bad idea. These approaches are very problematic because they are almost never done in a way that meets Idaho requirements for a legally valid amendment to a will or trust.
A legally enforceable change to a will is accomplished in one of two ways — by replacing the prior will document with an entirely new will document (and explicitly stating in the new document that all prior wills are revoked and replaced), or by adding a new document (called a codicil) to the old will document. A codicil must make clear exactly what part of the old document is being changed and will typically reaffirm the unchanged other terms of the old will document.
A legally enforceable change to a trust is similarly accomplished in one of two ways. The first way is by replacing the prior trust document with an entirely new trust document, although the name and creation date of the trust will remain the same and this is explicitly not a revocation of the trust. This is called a trust restatement. The second way to change a trust is by what is called a trust amendment — which is similar to a codicil of a will. A trust amendment is a new document that is added to the existing trust document and states which part or parts of the original trust document are being changed.
The laws of every state, and certainly of Idaho, have specific technical requirements for a will codicil or a trust amendment/restatement that must be followed in order that the changes contained within them will be legally effective. Simply writing on the existing pages of a will or trust will almost never meet these requirements, but certainly can lead to major post-death disputes among family members and other interested parties.
As I have covered here before, handwritten wills (called holographic wills) are legal in Idaho, but they also have very specific requirements, and also are not eligible for informal probate — the easier form of probate under Idaho law. It is certainly possible that a person could have a legally valid will or trust with an ineffective handwritten amendment. Just because the original document meets the requirements of the law does not mean that the amendment automatically does so as well. Like many things in the legal world, there are a lot of ways to mess this up, and just a few ways to do it right.
The good news is that a competent estate planning attorney can assist you with any modifications — big or small — that you may need to make to your estate planning documents. If you need to modify your documents, do not hesitate to speak to a qualified estate planning attorney.”
Mr. Green refers to laws in Idaho, but rules vary from state to state. Like Idaho, handwritten or holographic wills are legal in Ohio. However, they still need to meet all the same conditions as a standard will. Only an estate planning attorney can provide the necessary guidance to determine what is acceptable and what is not. If you have not updated your estate plan for more than a few years, it is probably time.
Call me at 513-399-7526 or visit my website, www.davidlefton.com. I’d be happy to work with you to bring everything current.
Source: Coeur d’ALENE/POST FALLS, 10/25/23 by Robert J. Green