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Why a Cocktail Napkin Isn’t a Good Place to Update Your Will

Why a Cocktail Napkin Isn’t a Good Place to Update Your Will

Estate Planning, Wills

A man we’ll call “John” decided to update his Will. He was getting older and taking stock of his life: his family, his assets and his desires after his death. John was already ahead of the game with a Will he created about a decade before, so he pulled out the original Will, grabbed a pen and started editing. As he thought of changes and additions over time, he wrote those wherever he could. On a cocktail napkin, he penned: “I leave my annuity to…”

Family relations and assets can change, and it may become necessary to update a Will to reflect these fluctuations. However, John’s actions — and the expensive and emotional fallout they caused for his heirs after his death — should serve as a lesson for anyone considering updating their Will in a similar fashion.

After John’s death, his original Will, with its crossed-out passages and notes in the margin, was found. Also found were various shards of paper containing additional instructions, including the cocktail napkin mentioned above.

John’s edits removed some original beneficiaries and added new ones. They all claimed they had a right to their inheritance. About a half-dozen family members, each with their own lawyer, ended up in probate court to attempt to work out John’s last wishes.

There were plenty of legal issues for the probate court to address, including if the changes to the original Will and writings on separate papers were valid. The court considered how these changes were executed and John’s mental capacity at the time John made the changes. His additions and edits also included directions for assets such as annuities, life insurance policies and IRAs and 401(k)s — all of which have their own beneficiary forms that control where those assets go after the owner dies.

Depending on a state’s laws, handwritten changes on a Will may be valid if the handwriting can be verified and the changes are signed and dated. (New Jersey law may allow such changes but Probate Court is required and that will be expensive.)

Here’s what John should have done to save his family from the emotional and economic toll of fighting over his assets in court:

  1. Returned to his lawyer, or sought a new one, to help him ensure his updates were valid and legal.
  2. Whether John worked with a lawyer or not, he should have used a codicil to make changes to his Will. A codicil is a formal legal document that can be added to the Will to reflect valid, legal changes to the estate plan.
  3. If the changes were extensive, John should have started over with a new Will. A new Will should state that it revokes all previous Wills and codicils. Previous versions of these documents should be destroyed.
  4. Worked with his insurance company and bank to update the beneficiary forms associated with his assets and policies.

It’s good practice to regularly review estate planning documents, including Wills, codicils and asset beneficiary forms to ensure they are up-to-date and accurately reflect your wishes. If changes need to be made, the steps above will help ensure that your instructions are followed with minimal burden on your beneficiaries.

To learn more about the estate planning process, it’s beneficial to hire an experienced estate planning attorney like the ones at Timothy Rice Estate and Elder Law Firm. Contact us at 856.782.8450 or [email protected].

 

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