The Only Thing That’s Permanent is Change: Amending and Revoking Estate Planning Documents

Estate Planning

People and circumstances change. What you thought was important last year may not mean anything to you now. After you develop your estate planning documents, you can change or revoke them (ideally, with new ones replacing them) at a later date if you wish. You’re not boxed in by these legal documents, but there are rules to follow for amendments to be valid.

You may want to change these documents for any number of reasons. You were divorced and don’t want your ex-spouse as an agent with a power of attorney or a beneficiary of your will. You may no longer have confidence in someone named as a trustee in a trust or as the executor in your will.

Changes and revocations to your estate planning documents should only be made after taking time to think about and consider what you want next. These legal documents are not grocery or to-do lists. Changes will require time and expense, so don’t make them on a whim.

Wills

Under New Jersey Law, a will may be altered (revoked, amended, revised) in the following ways:

  1. Formally, in a written instrument that clearly states the intention of the creator of the will, whether it be to revoke, change or otherwise amend the prior will. Sometimes a “codicil” is used to revise a will. In the alternative, a prior will may be revoked by the execution of another will. Whichever you choose, the document should be prepared in the same manner as the will:
      1. signed by the person who made the will
      2. witnessed
      3. notarized.
  1. You may also revoke a will by the act of physically destroying. This act must be performed by the person who created the will with the intention to have the will revoked. The will is deemed valid unless intent can be proven.

Trusts

A trust may be revoked, unless it’s irrevocable by its terms. Irrevocable trusts are often created for tax or legal reasons and involve the grantor providing assets that cannot be withdrawn once they’re part of the trust. If you want to modify or revoke an irrevocable trust, you should seek the assistance of an experienced trusts and estates attorney for guidance.

The creator of the trust (aka settlor or grantor) may revoke or amend a revocable trust by:

  1. Substantially complying with the terms of the trust
  2. Executing a later document that expressly refers to the trust, which manifests the creator’s clear intent to change a part of it, or the whole trust can be revised.

Powers of attorney

A power of attorney may be amended or revoked. You may want to widen or narrow the scope of a financial power of attorney. You may only want certain bills to be paid through a given checking account or give your trustee total responsibility for your financial life. You may want to change your agent or the instructions in a healthcare power of attorney.

Potential grounds to challenge a change

No matter the document, the individual wanting the change must be competent to do so. He or she must be of sound mind — enough to understand the meaning and purpose of the document and understand the nature and extent of their property. The validity of a change may be challenged if the person’s competence is in doubt.

Another possible ground for a challenge is when an individual is subject to the “undue influence” of another, which is when the person is either deprived of freedom of choice or another person’s choice is substituted for their own.

If you have questions about amending estate planning documents or want to make changes to one that you have created, contact one of our estate planning attorneys. We’ll be glad to answer your questions and address your needs.

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