Creating a Will is not necessarily a one-time proposition. Even if you have a valid document, you may need to update the Will for a variety of reasons, including the following:
1. The death of individuals named in the Will. If individuals named in the Wills, such as beneficiaries or personal representatives, have died or become emancipated, the Will may need to be changed. There are instances where change would not be necessary. For example, depending upon the Will, a predeceased child’s share typically passes to that individual’s children. Also, in some cases a testator may nominate a personal representative as well as an alternate personal representative. A review of the Will may be necessary to determine whether changes are necessary.
2. Assets. A change in your portfolio of assets may require a corresponding change in your Will. For example, if you leave your home to one of your children, and the balance of assets to your other children, and then sell the home, you may want to change the distribution of your other assets.
3. Marriage. If you already have a Will at the time that you are married, you will probably want to change your Will to name your spouse as the primary beneficiary of your estate, or to obtain spousal consent if you wish to dispose of your estate by devising some property to someone other than your spouse. Changes in your Will are especially important in second marriages when you or your new spouse have children from previous marriages or relationships. In Minnesota, a spouse who is not named in a Will will be able to elect against the Will in a legal proceeding, in which case the spouse would receive a certain percentage of the “augmented” estate depending upon the length of marriage. These types of proceedings can be avoided by simply revising your Will to properly account for your new spouse. Unmarried couples who want to leave assts to each other must create a Will except in cases where property is owned in joint tenancy, the decedent had named the surviving partner as a beneficiary on certain accounts or retirement plans, and the like.
4. Divorce. Although a divorce automatically revokes a Will in most states, there are exceptions and Wills drafted prior to the divorce should be revised. This also provides an opportunity to review other beneficiary designations that you have made on a variety of different assets such as life insurance policies, retirement assets, brokerage accounts, and the like. You may also want to change your Will if one of your children gets a divorce or you are concerned about the stability of that marital relationship.
5. Birth. Once parents have children, the Will should be amended to name the children, appoint guardians in the event both parents die prematurely, and create a trust for the children during their minority. Grandparents may also want to restructure their Wills concerning distribution of assets to grandchildren. Often, the use of a trust is recommended.
6. Retirement. This event may trigger the need to make changes to existing Wills or trust documents, particularly if there is a move to another state or you purchase property in another state where you might vacation for significant times during the year. The laws of each state are different and this may require reassessment of your planning. Retirement also triggers the reality that some decisions which may have been put off at a time when your mortality seemed more remote.
7. Tax law revisions. A change in tax law does not usually require a change to your Will, but may require a change in a trust that has been executed and funded, or may introduce the possibility of new trusts. On the other hand, it is not unusual for individuals to create a Will in their youth only to realize later in life that the basic planning that they have done does not adequately protect their estate from estate taxes.
If you need to update a Will or living trust, contact your estate planning attorney for assistance.
For more information on Wills, please contact Nic Wenner at 612-355-2202.