Key Takeaways
- If you have created a will, you may want to revoke it if you have experienced a significant life change, such as getting divorced, acquiring new assets, or having a child.
- There are several methods you can use to revoke a will, including creating a new will, destroying previous wills, and creating a form that specifies the revocation of a previous will.
- When planning to revoke a will, avoid common mistakes such as failing to inform relevant parties, disregarding state law, not storing a will properly, and not creating a new estate plan to replace the revoked one.
- If the creator of a will has passed away, but you believe a will has been created or altered as the result of fraud or undue influence, then you can contest the will after its creator has passed away.
Introduction
A last will and testament is a crucial document for specifying your wishes around where your most important belongings will go after you pass away. When you create your will, the document should identify what beneficiaries will receive a share of your assets and who should be in charge of distributing them. However, your wishes may change over time or if you experience a significant life event. In these circumstances, you can choose to revoke your will to reflect your most current intentions, but it’s important to revoke a will properly to ensure your wishes are carried out as you intend.
However, even after a person passes away, there are ways to call their will into question by contesting the will in court if you suspect something is wrong. There are several reasons a will can be contested. Perhaps someone exercised undue influence over your deceased loved one to con them into changing their will. Under most states’ laws, you can petition to contest the will that has been accepted. To do so, any interested person, including beneficiaries under a prior will, can file a petition to contest the will.
It’s important to understand what steps void a will and what the revocation process looks like so that you can avoid misunderstandings and potential disputes down the line. Because the period of time within which you may contest a will can be quite short, depending on the applicable state laws, it is important to immediately seek legal counsel and not to delay in protecting your interests.
What Is a Will?
A last will and testament is an estate planning document used to outline a person’s wishes for their belongings upon their death. This legal document should identify beneficiaries that you want to receive your assets upon your death and an executor responsible for carrying out the wishes in your will. The creator of a will is known as a testator.
The purpose of a will is to align with a person’s wishes for how assets should be distributed so that the executor carries out the distribution of assets as the decedent would hope. With this being the case, a person can choose to revoke their will at any point before their death and create a new will to better address their desired intentions if their initial wishes change.
Different Types of Wills
There are several different types of wills a testator may use to resolve their estate. Each type offers its own benefits and may make more sense depending on the testator and their estate planning goals.
The most common types of wills include:
- Simple will – A simple will is a standard will that identifies who will be the executor of the estate, names beneficiaries of the estate, describes how assets will be distributed, and nominates guardians for children.
- Joint will – A joint will is typically created by a married couple to ensure that the distribution of assets is agreed upon by both spouses.
- Pour-over will – A pour-over will is designed to transfer any assets directly into a decedent’s trust upon their death.
- Testamentary will – A testamentary will creates a trust to distribute assets into upon one’s death.
Any of the above wills can either be revoked, supplemented, or contested if necessary. Any additions or supplements to a will are known as codicils, often referred to as amendments.
Understanding Will Revocation
Revoking a will renders the document legally invalid, which means that it will not be used as a reliable representation of the testator’s wishes and cannot be used to guide the estate administration process. A testator may have a variety of reasons for wanting to revoke their will. Whether your relationship with your beneficiaries has changed or you have experienced a life change, revoking your will may be a helpful option for communicating your most up-to-date wishes.
Some of the most common reasons that someone may revoke their will include:
- A change in the family – The birth or death of a relative may warrant a change in a will to specify new beneficiaries.
- Divorce or marriage – If you get divorced or married, you may decide to revoke your will to either remove your former spouse as a beneficiary or add your new spouse as a beneficiary.
- The acquisition of new assets – If an individual acquires new valuable property or assets, they may create a new will to identify beneficiaries to receive these assets and how to distribute them.
- Moving to another state – Different states have different laws regarding who is in line for heirship, so if you move to another state, you may want to create a new will to ensure assets are transferred to the proper people.
- Significant amendments or codicils – If you have made several changes to your will through several amendments or codicils, it may be helpful to revoke the original will and create an entirely new one to avoid ambiguity and confusion
Ultimately, a will creator has the ability to change their will at any point in time as long as they follow the appropriate legal processes for doing so. Whether their life circumstances require it or their wishes have simply changed over time, a testator may opt to change or revoke their will under most state laws.
How To Revoke a Will
There are several different methods you may be able to use to revoke your previous will through legal means, depending on your state. To revoke your will, consider one of the following steps.
1. Creating a Completely New Will
In general, creating a new will replaces any previous written or electronic wills. There are two main methods—express revocation and implied revocation.
Express revocation happens when you include specific language in your will to revoke the previous will. This language is typically a simple, brief statement expressing the intent to void all previous documents.
An example of such language would be:
“I declare this document to be my last will and testament, and upon the creation of this will, I revoke all previous wills and codicils.”
Implied revocation occurs when you create a will that is entirely inconsistent with any previous will, signifying that your wishes have changed and the previous will is not to be followed.
For example, if a decedent’s previous will names their siblings as beneficiaries but a new will, created after they get married, names their spouse as the primary beneficiary.
However, if you think there is a chance that there may be ambiguity between the new and previous will, consider including a statement in the new document that revokes the previous one. For example, two wills naming different beneficiaries may imply that you want to split assets between them rather than distribute assets only to beneficiaries identified in the new will.
2. Destroying All Previous Wills
The physical destruction of a will demonstrates your intent for the will to no longer be followed—this can include ripping up, burning, or shredding the document. If you, as a testator, take this route, it’s important that you destroy the will and all copies of the document. Even if you use other methods to revoke your will, it’s still a good idea to destroy any other copies so there is no confusion about which is the correct document.
3. Revocation by Law
In some states, legal operations such as a marriage or a divorce may automatically revoke or void a will or some of its provisions. This option depends on state law and may not be the case everywhere.
For example, in Texas, Estates Code 123.001 revokes any provision in a will that relates to a former spouse when there is a divorce or annulment of a marriage unless the will explicitly states otherwise. Similarly, in California, a finalized divorce may affect a will by automatically revoking the appointment of property to the former spouse and removing them from the role of executor if they were named as such in the document, unless otherwise specified in the will.
However, a divorce will not revoke the will in its entirety. If you get divorced and change your estate plans as a result, you will need to revoke your will using one of the above avenues.
Marriage can also affect some provisions in a will. In both California and Texas, spousal property rights granted by community property laws may override portions of a will that exclude your spouse unless otherwise specified in a prenuptial agreement. If a spouse is not included in a will after marriage, they may be considered an omitted spouse and will be entitled to at least all community property and a share of the estate.
State-Specific Legal Requirements
Requirements for revoking a will may vary depending on the unique laws of each state. It’s crucial to understand state-specific requirements and local statutes so that you can ensure the will is completely and legally revoked. Failing to properly revoke a will may open the door for the potential for will contests in the probate process, resulting in delays to the probate process and the risk of the testator’s wishes not being carried out.
California
California allows for the revocation of a will through several methods. Approaches for revoking a will in California include:
- Physically revoking the will – The creator of a will may revoke it by ripping it apart, burning it, or otherwise destroying it, as long as this is done by the testator themselves or by another individual in the presence of the testator with their consent.
- Creating a subsequent written document – Establishing a new will or trust can revoke any previous iterations, as long as the new document explicitly states that it should revoke all previous wills and codicils.
- Changing life situation – A life event, like a divorce, can partially revoke a will automatically, as California state law states that a provision leaving property to a spouse is automatically revoked upon termination of the marriage unless the will states otherwise.
To fully understand the requirements for revoking a will in California and how it may interact with established inheritance rights, it’s advisable to consult an experienced probate litigation attorney who is well-versed in California state law around estate administration.
Texas
Like California, Texas allows for the revocation of a will under multiple processes. In Texas, a testator may revoke a will by taking the following steps:
- Taking a physical act on the will – A testator with intent to revoke a will and the mental capacity to revoke it may take physical acts like destroying the will to legally revoke it.
- Making a subsequent writing – Drafting a new will with language that expresses intent to revoke the previous will or a codicil that requests changes can both revoke all or part of a will.
- Invoking operation of law – Cases like divorce, the existence of pretermitted heirs, or the death of a beneficiary can all require changes to a will under Texas state law.
Keep in mind that Texas law does not allow for the partial revocation of an attested will. As a result, physical acts like strike-outs or interlineations are not sufficient for revocation. If you have questions about how to revoke a will in Texas, consider consulting an estate administration attorney in the state for clear guidance on how to proceed and how it may affect the admission of the will into probate.
Common Mistakes To Avoid When Revoking a Will
Revocation of a will is a relatively simple process, but a mistake could result in an old will still being used to guide decision-making around your estate. If you’re not careful, it may be unclear which will your family members and the court should follow. To avoid any misunderstandings, you should avoid the following mistakes.
Failing To Inform Relevant Parties
If relevant parties are unaware of the revocation of the original document and the institution of a new will, they may mistakenly use the original will to guide estate administration. If you revoke your will, you should notify all beneficiaries, the executor, and other interested parties so that the original will is not submitted for probate. Any new will should be signed and dated by two witnesses so that it is valid under the law.
Not Storing the New Will Properly
If the new will is not stored properly, it could lead to two possible issues. The first risk is that the will could become damaged. If the will is stored carelessly and sustains significant damage, it could void the will and make it unintelligible. Water damage, aging, and fire damage can all affect a will and prevent it from being legible.
The second concern is that the will may be inaccessible or unobtainable. If the will is stored in an unclear location, it may be difficult for the executor or family to find the document and use it to guide estate administration.
You should store your will in a fireproof box as well as maintain a digital copy. Then, be sure a trusted party, ideally the executor, knows where the will is and how to access it so that they can submit it to the probate court.
Ignoring State-Specific Laws
States may have different laws surrounding the process of revoking a will. For example, if you are familiar with Texas laws that state divorce automatically revokes provisions, and you move states, you may end up falsely assuming your divorce removes your spouse in the new state as well.
Always be sure to consult an estate and probate administration attorney in your state to ensure that you understand state laws and your estate plan remains in alignment with your true intentions.
Assuming the New Will Revokes Your Old Will Automatically
A new will can revoke a previous will, but it’s important to be certain that it is clear that it does. For this to work, you must either explicitly state that you wish to revoke all previous wills or have a will that completely contradicts the previous will.
If the proper language is not included to revoke all previous wills and it’s unclear whether you want to replace the former, it may leave ambiguity regarding your intentions. For example, a new will may be used by the court as an addendum to your previous will rather than a replacement. If there is any ambiguity between which document to use, it could lead to disputes between beneficiaries in probate.
Can You Void a Will After Its Creator’s Death?
A will cannot be revoked after its creator dies. However, if an executor attempts to probate a family member’s will that seems questionable or not to align with their initial intentions, interested parties with standing can contest the will.
To file a will contest, you must be an interested party in the will and have valid grounds to do so. If successful, a will contest can result in either a provision of a will or an entire will being voided.
Valid reasons to contest a will include:
- You believe the decedent created or altered their will as a result of unwelcome, undue influence from another person.
- The decedent did not have the mental capacity to create, amend, or revoke a will.
- The decedent created their will by being defrauded or deceived.
- The will was forged or fraudulently signed by someone who was not the decedent.
- The will was not properly executed according to state law.
A will contest is an option available to protect the interests of the decedent, ensuring that the will passed through probate fully and accurately represents their wishes. If you think you have valid grounds to contest a will, you should consult a probate litigation attorney as soon as possible. An experienced attorney can help you gather evidence of potential wrongdoing, build a case for revoking the will, and protect your loved one’s wishes.
Seeking Legal Assistance
Obtaining legal assistance is a crucial step in the process of revoking a will. A skilled attorney will help you understand the circumstances in which you can change or revoke a will, offer guidance on the necessary processes to do so, and help you navigate the steps in the legal process.
An attorney will help ensure that the steps you take to revoke your will are legally binding and minimize the risk of other interested parties challenging the process. An experienced attorney will have a full understanding of your options and offer guidance on how to proceed. A probate estate litigation attorney may also be able to step in if there are challenges to the will and its provisions, whether an individual contests that the will should not be revoked or that the terms of the will are invalid or affected by undue influence.
Handling Partial Revocations
A partial revocation of a will means that only some portions or provisions of a will are cancelled out or invalidated, while the remaining portions are considered valid. In some states, partial revocation is an appropriate method for revoking part of a will, as long as these sections do not significantly alter the terms and intent set forth by the rest of the will.
However, not all states allow for partial revocation or only allow for partial revocation in some circumstances, so it’s crucial to understand how state laws influence this method as an option. For example, Texas does not authorize partial revocation for attested wills through a physical act.
To carry out the process for partial revocation in states that allow it, you may be able to take the following steps:
- Drafting a written codicil – A written revocation that specifies which parts of the will you want to revoke can be sufficient for striking those provisions from the will while preserving the intent of the rest of the document.
- Physically revoking parts of the will – Some states allow for the revocation of parts of a will through a physical act, like crossing out a paragraph of the will in pen or destroying pages of the will.
Again, these processes may vary depending on the state where you are located. Always consult an estate administration attorney if you are considering changing a will or are unsure how will revocation may affect the administration of your family’s estate.
Reviewing the Existing Will
It is advisable to review your will regularly after creating and implementing it. Because life circumstances and relationships can change, so can your wishes for your estate. When revoking a will or questioning whether it needs to be adjusted, it’s important to consider several factors.
When considering changing the will, ask questions like:
- Have your life circumstances changed significantly, affecting relationships, family structure, or assets?
- Are the listed beneficiaries still your preferred beneficiaries for your assets?
- Who will stand to inherit assets after drafting the new will or codicil?
- How might beneficiaries respond to the will being revoked or changed?
- What do the terms of the existing will state about the process for revoking or amending the will?
- Have tax laws or other legal standards changed in a way that may influence your estate plan structure?
- Will the proposed changes alter a section of the will or the intent of the whole will?
When reviewing the will against the questions above, you should consider whether it’s best to amend the will or if it’s more reasonable to revoke the entire will. A codicil may make more sense if the change is small, such as adding a new asset or changing the executor, while it may make more sense to create a new will if the original is poorly written or requires multiple changes to address the testator’s intent. Consulting an attorney may help you differentiate between which action makes the most sense for you.
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Take Control of Your Estate: Revoke Your Will the Right Way
A testator has the option to revoke their will before they pass away by either creating a new will, destroying the previous will, or undergoing a legal event in some states. A will cannot be revoked after a testator dies, but in the event that a will may have been the product of fraud, undue influence, or other issues, interested heirs will be able to contest the will to void either specific provisions or the full document. A probate litigation attorney can help you ensure you have standing for a will contest and help you navigate the process.
Our attorneys at RMO are here to support you in executing your will. Whether you have questions about a previously revoked will that is affecting the probate process or believe you should pursue a will contest, our attorneys can help. With our decades of experience, we are dedicated to creating a winning strategy for securing your rightful inheritance and preserving the wishes of the deceased.
Schedule a consultation with our attorneys at RMO to discuss your case and how we can help you navigate your legal options.
Glossary
Testator – An individual who creates a will.
Settlor – Another word for the creator of a will.
Codicil – An amendment or an addition to a previously drafted will that modifies or revokes all or part of the will.
Express revocation – When you create a new will and include a statement that explicitly specifies your intention to revoke your previous will and all related amendments or codicils.
Implied revocation – When you create a new will that outlines wishes that completely contradict your previous will, so it is implied that the new will is intended to revoke and replace the initial.