If you pay an estate planning attorney to prepare your estate plan in detail in 2015, what happens when you need to make changes? Should you just scratch through the person you named as the Independent Executor of your Will and write in your new choice (you could even go so far as to initial the change)? The short answer to this is no, and it is important that you revisit an experienced estate planning attorney’s office to make sure any revisions you need to make to your plan are valid.
Handwritten Revisions to Your Typed Will Are Likely Invalid and May Invalidate Your Entire Will!
Unfortunately, revisions to your Will and other documents (such as a power of attorney) are generally not invalid and would be disregarded by a Court interpreting your Will, especially if the changes are made directly to the document itself. If you get really enthusiastic about updates and end up scratching out large portions of your Will, you could end up invalidating the entire document!
Perhaps the worst example of a Testator (the person whose Will it is) making his own revisions to a Will is the “Swiss cheese” Will – this is when the Testator actually cuts out the provisions of the Will that he no longer wishes to apply to his estate. If you hold up a Will like this, it very much resembles Swiss cheese with all of the holes in the document!
In such a case, there is no way to determine what the missing terms of the Will said, and if significant portions of the Will are gone, it is very likely that the Court would refuse to accept the entire document, forcing the estate into an (expensive) intestate probate proceeding.
How do I create a valid update to my Will or other documents?
For changes to your will, a Codicil should be created and executed with the same requirements and formalities of your original Will (think: witnesses and notary present, special attestation language for these witnesses). In Texas, it is possible to create a valid Codicil or Will if it is entirely in the Testator’s handwriting, signed and dated by the Testator and shows that it was the Testator’s intent to create a Will (or a Codicil to his or her Will). However, just because a document is valid does not mean it is well written or will provide for an economical probate proceeding.
For a trust, a trust amendment may be the proper means of updating the documents. For changes to your powers of attorney, HIPAA authorizations and other “ancillary documents,” it is usually best to have a new document created for you to sign.
Talk to your Estate Planning Attorney
At Thrash Law Firm, we provide an in depth interview process and tailor each client’s plan to his or her needs, but our other primary concern is to make sure our plan enables surviving family or loved ones to get through the probate or trust administration process with as little court involvement and expense as possible.
Your estate planning attorney is the best person to consult about any changes to your estate plan – including simply updating a person’s name or replacing someone named to serve as your agent or estate representative.