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What if I Decide to Change My Will? What are My Options?

A person may need or desire to change his/her last will and testament for a variety of reasons. This article explores the options available in Washington state.


Codicil


A codicil is a testamentary document that modifies or partially revokes an existing earlier will. RCW 11.02.005(2). A codicil should be used to make minor changes to a will to avoid redoing the will altogether. Examples of circumstances that may be addressed via codicil include: changing legal guardian for minor children or executor nominations, changing specific gifts mentioned in the will, or changing/adding beneficiaries (as to probate assets).


Moreover, a codicil is technically a will under Washington law. Therefore, for the codicil to be valid it must meet the formal requirements for making a valid will. Generally, these requirements are:

  • Sound mind, no undue influence of testator;

  • Testator over the age of 18;

  • Signed by the testator;

  • Witnessed and signed by two disinterested witnesses.

For more detailed information on the requirements for making a valid will in Washington state read here.

Personal Property List (Changes to Tangible Personal Property Dispositions)


Washington law provides that a separate writing may dispose of the testator’s tangible personal property. RCW 11.12.260. To be valid, the following requirements must be met:

  • An unrevoked will or trust refers to the writing;

  • The writing is either in the handwriting of or signed by the testator; and

  • The writing describes the items and the recipients with reasonable certainty.

The writing may be completed before or after the execution of the will or trust that refers to it. If the writing meets the above requirements, it will be treated as if it were a part of the will or trust.


If the testator wishes to make changes to the personal property list, he/she can do so by making subsequent changes either in his/her own handwriting or by signing the changes in the writing.


Therefore, if the changes to the will involve changes related to tangible personal property and the above requirements are met, neither a new will or codicil may be needed as instead changes can be made to a valid personal property listed.


Tangible personal property includes, for example, furniture, cars, boats, jewelry, coins. Tangible property does not include mobile homes, or intangible property, such as money, bank accounts, or investment securities. However, securities are generally kept in a brokerage account that allow for beneficiary designations. If these are desired changes then such changes should be made on the applicable beneficiary designation form. Bank accounts may be characterized as payable on death such that similar beneficiary changes can be made on such accounts directly.


New Will


If the desired changes are sufficiently significant then another option is to revoke the existing will and create a new will. In Washington, a will can be revoked as follows:

  • By a subsequent will that revokes the prior will; or

  • By being “burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same.

If a marriage or domestic partnership is dissolved, terms of the will in favor of the former spouse or registered domestic partner are automatically revoked (unless the will provide otherwise). RCW 11.12.051.


Also, where a new will revokes a prior will, revocation of the new will generally does not revive the old will.


Similar to a codicil, the new will must be executed in such a way as to meet the requirements for a valid will in Washington state.


Changes Related to Nonprobate Assets


Nonprobate assets are those that pass on a person’s death by a written instrument other than a will. Examples of nonprobate assets include:

Statutory examples of nonprobate assets per RCW 11.02.005(10) include:


  • Property passing via joint tenancy with right of survivorship

  • Joint bank account with right of survivorship

  • Transfer on death deed

  • Payable on death account

  • Transfer on death investment account

  • Trust property if the trust becomes irrevocable on the person’s death

  • Community property agreement

  • IRA

  • Bond

Therefore, any changes to an estate plan must be mindful regarding the nature of the asset to which the change relates. Changes to beneficiaries of nonprobate assets should be made on the title to the nonprobate asset (e.g., beneficiary designation form on an investment account).


Attorney, Chris Chicoine

www.chrischicoinelaw.com

Christopher R. Chicoine, PLLC

DISCLAIMER - THIS IS FOR INFORMATION PURPOSES ONLY; IT'S NOT LEGAL ADVICE. DON'T ACT OR REFRAIN FROM ACTING BECAUSE OF THIS. NO REPRESENTATIONS OR WARRANTIES OR ANY KIND ARE MADE. CONSULT AN ATTORNEY.




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