Ask the Probate Judge—Will Myths 6-10, Part 2 of 2
Rudd, appearedDecember 4, 2003, Albuquerque Journal, Business Outlook
Reprinted with permission
Editor's note: This column may not be quoted or reproduced in whole or part without express written permission of the author.
Continuing from my previous column, here are five more common "will myths." Remember these are myths; they are generally false!
Myth 6. Old wills are invalid. Wills do not expire, unless you revoke them. Updating old wills is not required, and a will executed many years ago remains valid. You should, however, review your old will to make sure it still reflects your wishes.
Myth 7. An elderly person is not competent to make a will. Elderly people may be eccentric or even confused at times, but they may still be competent to make a will if they: 1) know they are making a will; 2) understand the extent of their estate, and 3) know the "natural objects of their bounty," i.e., who their children are. One exception: if Person A unduly pressures Person B to create a will naming Person A as beneficiary, then undue influence may have occurred. If proved in court, Person B's will could be invalid.
Myth 8. Everything is in joint tenancy, so I don't need a will. Many couples own all of their property as joint tenants so that upon the death of one joint tenant, probate is not necessary. A will, however, allows you to name a personal representative, to use the "separate list of tangible personal property" provisions, and to choose recipients of property upon the death of the surviving spouse. A will provides directions in the case of the simultaneous deaths of a married couple. A will can also name a guardian of a minor child or provide for care of a disabled adult. Remember that a will does not affect property held in joint tenancy or property that passes to a named beneficiary (Myth #5 elaborated this point).
Myth 9. I am divorced, so I must update my will. Divorce or annulment automatically excludes the ex?spouse from inheriting under the terms of a will or from serving as a personal representative. Legal separation has no effect on a valid will. However, updating a will after an annulment of a marriage or a divorce is probably wise, especially if you wish to provide for the ex-spouse in the will. Believe it or not, some people wish to do this.
Myth 10. I can change my will by crossing out language on the original, writing in the changes, and initialing them. Such changes would not be valid because you did not execute them in the presence of witnesses. The correct way to change a will is to sign a codicil (amendment) to the will. The codicil should properly identify the will that is being amended, including the date the will was signed, and state in detail what changes are being made. You should execute a codicil in the same manner as a will, signing and dating the codicil in the presence of two witnesses who also sign the codicil.
Send me more myths, and I will discuss them in future columns.
© 2003, Merri Rudd & Albuquerque Journal, All Rights Reserved