How To Revoke A Will

Executive summary

• 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 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, and not storing a will properly.
• 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 a variety of 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 voids a will and what the revocation process looks like so that you can avoid misunderstandings and potential disputes down the line. 

Additionally, 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 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 so that the executor carries out the distribution of assets as they 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 names guardianship of 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. 

Reasons for revoking a will

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 person. 
• 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.

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 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 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 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 surrounding 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. 

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. 

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 fire-proof 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 will 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.

Take control of your estate: Revoking your will the right way

A testator has the option to revoke their will before they pass 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 provisions. 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.