A will, along with essential accompanying documents such as healthcare and financial powers of attorney, as well as an advance healthcare directive, forms the cornerstone of estate planning. Surprisingly, only 46 percent of US adults have a will, according to Gallup. This statistic has remained consistent in Gallup polls since 1990. If you find yourself in the minority without this vital estate planning document, you are likely aware of the potential risks.
However, it is crucial to understand that merely creating a will does not signify the completion or finality of your estate plan. Your will may require periodic updates or even complete revocation and redrafting. If the State of Oklahoma invalidates your will, then your estate could be at the mercy of the probate court.
Revoking a will is typically an intentional action by the will-maker. Nevertheless, various states have laws that automatically revoke a will or certain portions of it in specific circumstances. Additionally, certain actions by a beneficiary can result in the revocation of their interest in the will.
A will, formally known as a last will and testament, serves as a directive for the distribution of a person's money and property after their death and the care of their dependents. A comprehensive will should include the following provisions:
Upon a person's demise, they will undergo a legal process known as probate, typically in a probate court situated in the county of their residence. In some cases, a different location may be required if the deceased person owned real estate in another county or state. However, if a person passes away intestate, meaning without a will, the court must adhere to state laws that govern asset distribution, executor appointment, and guardian selection.
Most individuals prefer to make their own decisions regarding these crucial matters rather than leaving them to the state's discretion, where a judge decides who receives your assets through the probate process. Nevertheless, state law governs the outcome if a person does not have a will or trust in place.
Crafting a basic will does not have to be a costly or time-consuming endeavor. It should be updated to reflect changes in life circumstances. Many people choose to revise their will upon marriage, divorce, the birth of a child, increased wealth, property acquisitions, retirement, or relocation to another state or country. Additionally, a will-maker may have a change of heart regarding beneficiaries or a guardianship arrangement due to personal conflicts or changes in the circumstances of the intended parties.
Estate planning attorneys typically advise revisiting and potentially updating a will every few years. Even without significant life events, periodic reviews are essential to ensure that the will accurately reflects your intentions and aligns with pertinent legal requirements.
Modifications to a will are typically accomplished through a legal instrument called a codicil. Similar to executing a will, executing a codicil generally entails the person making or altering their will signing the codicil or will in the presence of at least two witnesses.
To some extent, Codicils represent a relic of the past when handwritten revisions to a will were more burdensome. Creating a new will incorporating the necessary amendments is simpler than it once was. The American Bar Association also advises caution regarding codicils, as they can introduce confusion or potential legal disputes if they create ambiguities when interpreted alongside the provisions in the original will.
It's important to note that utilizing a codicil to make minor changes to a will, such as modifying the executor, does not automatically revoke the entire will. However, in certain states, a codicil can serve to republish or revoke a will.
Your estate planning attorney might counsel against using a codicil due to the potential issues it can create and instead suggest creating a new will or trust. For the new will or trust to be valid, it must be executed correctly according to Oklahoma law. Additionally, the will should include explicit language expressing the will-maker's intent to revoke all prior wills. However, there may be situations where the will-maker does not wish to revoke all prior wills. For example, they might need a separate will for property owned in a foreign country.
The fastest way to revoke a will is to physically destroy it. States have different definitions of what qualifies as the destruction of a will. Usually, the state statute includes some variation of the phrasing that a person can revoke their will by “cutting, tearing, burning, obliterating, canceling, destroying, or mutilating” it. Note that this definition does not include making notes in the margin or placing an “X” through part of a will.
Most state laws provide that the destruction must be done with the intent and for the purpose of revocation, so accidentally destroying a will may not revoke it.
Electronic wills may have different definitions for revocation by destruction. Florida, for example, says that an electronic will or codicil is revoked when it is deleted, canceled, rendered unreadable, or obliterated.1
State law may provide that a will is revoked, in part or in full, if certain events take place, such as the following:
Whether you are making minor adjustments to your will or completely revoking it to create a new one, it is crucial to ensure that the revocation complies with state laws. Failure to do so could result in your final wishes not being recognized by the court, leading to consequences similar to not having a will at all. This situation can add significant stress and potential conflicts for your loved ones.
To safeguard against such issues, it is advisable to update your estate plan every few years, considering new milestones, changing directions, and any updates in relevant laws. If you would like to discuss changes to your estate plan, we invite you to contact Ball Morse Lowe today to schedule a free consultation at 405.701.5355 or email clientintake@bml.law. Our team will be happy to assist you.
1 - Fla. Stat. § 732.506 (West, Westlaw through 2022 Reg. Sess. and Spec. A, C, and D Sess. of 27th Legis.), http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0700-0799/0732/Sections/0732.506.html.