A common question that comes up when preparing an estate is, “Does a new will override an old will?” In short, yes, writing a new will can cancel a preexisting will. However, to reduce the likelihood of problems when settling an estate, a new will should be written correctly to revoke the old will. It’s also a good idea to destroy any copies of the old will. A will can sometimes be revoked against the wishes of the writer of the will; for example, after divorce if state laws invalidate terms of the will that apply to a former spouse. Beneficiaries or other interested parties may also invalidate a will by claiming it was not created properly. Talk to a financial advisor about your wishes and get started on a comprehensive estate plan.
Will Revocation Basics
Wills are part of most estate plans. People planning their estates use these legal documents to specify how their assets will be distributed after they die. In addition to naming beneficiaries who will receive assets and property, wills select legal guardians and nominate executors to carry out the wishes expressed in the will.
It’s common to update a will as life circumstances change. Births, deaths, marriages, divorces and similar events can all necessitate an update to an old will. When someone with a preexisting will wants to make significant changes, it may be necessary to write a new will and revoke previous wills.
Ways to Revoke a Will
Simply having the desire to revoke an old will is not enough. The wish has to be clearly stated in writing in a legally valid manner. A phone call, face-to-face conversation, email, letter or note expressing the desire to revoke the will lacks the necessary legal force. However, there are several different ways to revoke an old will:
- Write a completely new will, date it, have it witnessed and sign it. In some cases, the existence of this later document will be enough to cancel the older will.
- To ensure the old will is effectively revoked, estate planners generally include language in the new will making it clear that it’s replacing an older document no longer considered valid. Including a statement in the new will revoking previous wills makes it more likely the new document will prevail when the estate is settled.
If the new will does not specifically revoke all former wills, the old will could still be at least partly in force. Without clear revoking language in the new will, the probate court and executor could consider both wills and reconcile any differences as well as possible. The wishes of the deceased may not be carried out if this happens, which is why estate planners prefer to include language revoking all previous wills when drafting a new one.
It’s also advisable to destroy your old wills to eliminate the chance of an old will getting introduced into the process and obscuring your wishes. Shred, tear, burn, or cut out the signature line.
However, it’s always possible a copy could exist in the possession of a former executor, attorney or other person. If one surfaces, it could confuse matters.
A process called operation of law can also revoke a will. This occurs when circumstances arise that, according to law, invalidate an existing will. If someone gets divorced, for instance, state law may automatically invalidate any terms in the will that refer to a former spouse.
State laws on this do vary, so operation of law is not consistent between jurisdictions. If a will is automatically revoked in this manner, beneficiaries or other interested parties may seek to challenge the revocation. As a result, it’s often desirable to write a new will even if the former will has been automatically revoked.
Sometimes a will may be automatically revoked by operation of law when the estate planner wants the relevant terms to remain valid. For example, the planner may want a former spouse to remain as a beneficiary. If this happens, again, it may be necessary to write a new will.
Additional Ways to Change a Will
Depending on your situation, it might not be for the best to completely replace a will. Adding a codicil to an existing will can be an effective and efficient way to change some terms without drafting a new one. A codicil can be appropriate if changes are minor, such as naming a new executor, adding a new asset or changing a beneficiary. If changes are extensive, then it may be better to write a new will, but for minor changes, a codicil can be easier and faster.
Most methods of revoking a will can only be done by the person who is planning their estate. However, sometimes beneficiaries or other interested parties may challenge a will and have it declared invalid. Allegations that the writer of the will lacked sufficient mental capacity, was subject to undue influence or fraud, or simply made a mistake can be grounds to have a will declared invalid, effectively revoking it.
Bottom Line
Wills are legal documents people use to dictate the way their assets will be distributed after their death. It’s common to want to change the terms of a will and create a new one. To ensure the wishes expressed in the new will are followed, it’s generally advisable to revoke any previous wills. You can do this by using specific language in the new will revoking all previous wills, and then destroy any copies of old wills. Wills can also be revoked by other mechanisms, including automatically by law or through a challenge by interested parties.
Estate Planning Tips
- A financial advisor can help walk you through the estate planning process. Finding a financial advisor doesn’t have to be hard. SmartAsset’s free tool matches you with up to three vetted financial advisors who serve your area, and you can have a free introductory call with your advisor matches to decide which one you feel is right for you. If you’re ready to find an advisor who can help you achieve your financial goals, get started now.
- Use SmartAsset’s Property Tax Calculator to estimate how much property tax you’ll owe based on your location and home value.
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