How To Revoke a Will

What Does It Mean To Revoke a Will?

Revoking a will means to cancel the document. If a will is properly revoked, it will be as if the will never existed. Only testators can revoke their will, because once they die or become incapacitated, the will becomes a legally binding document that cannot be changed or revoked.

How To Revoke a Will

Different state statutes define how a will may be revoked. Some states allow revocation by destruction when the testator “tears, cancels, obliterates, or destroys the will with the intention of revoking it.” This often does not include handwritten marks in the margins of a will, or where, for example, a testator draws an “X” through some of the pages of a will. Thus, a court may treat an improperly destroyed will as if the will had not been changed.

However, if you want to revoke your will, it is not good practice to simply destroy the original. Instead, make a new one that replaces the old. The new will should explicitly revoke all previous wills and set out your new wishes. Then, you are in the clear to destroy the old will and any copy you can get your hands on.

Destroy the Old Will

Generally, if you want to destroy a will in order to revoke it, you can burn it, tear it, or shred it to pieces, so long as you intend to destroy the will. This applies to whether you actually destroy it, or whether someone else destroys it, at your request, and in your presence.

Risks of Destroying a Will Without Creating a New One

If you destroy the original will without creating a new one, keep in mind there might be copies still lying around. Probate courts sometimes accept copies of a will, instead of the original, if there’s a good enough reason. Basically, if someone can produce a copy and show evidence of who is responsible, the Courts tend to be cautious about accepting copies. Someone who tears up a will on purpose does not want the court to honor a copy that surfaces after the will maker’s death. So, generally, courts presume a missing will was destroyed intentionally and require anyone who wants to submit a copy to show a good reason why.

Make a New Will

To be on the safe side, follow this advice: if you want to revoke your will, don’t rely on destroying the original. Make a new one that replaces the old. The new will should explicitly revoke all previous wills and set out your new wishes. Then, tear up the old will – and every copy you can get your hands on.

Make Changes to an Existing Will

Another option to revoke a will is by making changes to parts of an existing will. The amended will is now a “codicil”, and it has the effect of creating a new will because in essence, it can change key aspects of an existing will.

When You Want to Revoke a Will

In life, we marry, divorce, have children, and acquire and dispose of property – all of which affect how we want our wills to read. Thus, you can anticipate that you will create or amend a will more than once in your lifetime as situations change.

Need Help Revoking Your Will? Contact Evolution Tax and Legal

An Orange County will lawyer at Evolution Tax & Legal can advise you on the proper ways to revoke a will, and make sure your intentions are clear so as to avoid any confusion from your wishes after death. Contact us today to learn how we can help guide you through estate planning with confidence.

September 12, 2022

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