Your client’s will is an integral piece of his or her estate plan and should be reviewed on a continuous basis to make sure it’s up to date. But how often does it need to be revised?
The people giving out advice on this topic are, for the most part, attorneys and, thus, have a vested interest in making as many changes to a will as possible.
But there are ways in which people can make changes or additions to their will without the costly services of a lawyer. A knowledgeable estate planner should be able to guide a client through alterations — in some cases, fairly significant ones — without putting the client in any legal jeopardy.
Here are a few simple changes that can save your clients a lot of time and money by avoiding an appointment at the attorney’s office.
If they want to take control of where their prized personal possessions end up, it’s possible to create a memorandum of tangible personal property that can provide explicit instruction on where everything should go. This can be created entirely separately from the will and can specify who is to receive keepsakes, jewelry, artwork, collectibles, etc.
Such a document may not be legally binding in every state, but it’s likely to be followed more than not. The executor of your will can be expected to put extra pressure on anyone who resists the specific property requests.
The informality of this document can work in the client’s favor. Decisions about who should receive personal mementos change over time, as grandchildren are born and grow up, heirs express a desire for a specific keepsake or piece of jewelry, the client accrues more personal material to be distributed, and so forth. If the directions were contained in the client’s will, the changes might have to be attested to and notarized to make them legally binding. A memorandum of tangible personal property can be drawn up in an estate planner’s office — or at the client’s home — without all the formality.
There are certain items that cannot be covered by a property memorandum, though. It can’t be used to transfer financial assets, such as stocks and bonds, or cash. It also cannot be used for real estate or intangible property, such as a copyright.
One important caveat: The property memorandum is not legally binding unless the original will refers to it. The reference can be to something created in the future. The will can say something like, “If I leave a memorandum of tangible personal property separate from this will, whether that document is executed before or after this will, I direct that this document be followed by my personal representative.” Even without that notice in the will, the client’s heirs are likely to follow the memorandum, but they won’t be legally required to.
More substantive changes — say, for instance, you have a client who wants to change the percentage of his or her estate going to each child, or wants to add a grandchild to the list of beneficiaries — require a bit more formality but still may not require the services of an attorney.
Through the use of a codicil, a client can make minor changes without refiling an entirely new will. This is an addendum to the original will that specifies what the changes are. A codicil is more formal than a memorandum of tangible personal property. In some states, it may require witnesses in order to be valid.
Aside from the convenience, there’s another reason why your client might want to prepare a codicil as opposed to rewriting the entire will. If the client is nearing the end of his or her life and there may be reason to suspect them of not being in full control of their capacities, the codicil may be challenged on that basis. But the fact that the new information is in a codicil lessens the risk of overturning the entire will.
Because of the complexity involved, many attorneys will tell you that their services are required to properly execute a codicil. That may be wise if the changes are complicated, but it’s not at all necessary. There are codicil forms available on the Internet that are simple to fill in. Here is one such example.
It’s an important point to keep in mind, one that many clients are unaware of: It is not required to have an attorney involved in drafting a will at all. Obviously, an estate with any complexity at all warrants an attorney’s help, but for minor adjustments — as long as all the legal niceties are followed — anyone can make changes.
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