This is a question asked frequently during the will-drafting process. Most people make their wills with the expectation that they still have decades of life ahead of them. While most people are correct in this regard, in the time between executing one’s will and one’s passing away, there are many things that can happen that may affect what the testator intended in his or her will. This post outlines some common changes that may occur during the life of the testator and some ways that changes are addressed.
First, a properly drafted will contains language designed to address many possibilities, whether or not they actually occur. Estate planning attorneys work with clients to anticipate future changes in their circumstances.
One possibility is that a person that the testator has named in his or her will passes away before the testator. This could be someone whom the testator named to be appointed as the personal representative of his or her estate or to another fiduciary role, such as custodian. In anticipation of this, the will should name alternate persons for these roles in case the first choice is unable or unwilling to serve.
Similarly, a beneficiary named in the will might die before the testator. Therefore, it is typical to also name contingent beneficiaries (e.g., “If my spouse does not survive me, then I give to my son, Douglas . . .”). However, unlike naming alternate persons to a fiduciary role, there are more possibilities to consider when it comes to naming contingent beneficiaries, because this language ultimately determines who receives gifts or shares of the property of the estate.
If the beneficiaries do not survive the testator, nor do the contingent beneficiaries, then what? Many clients voice a preference that if this happens, the gifts or shares will go to the descendants of the named contingent beneficiaries (usually, the descendants are their grandchildren). Though, at the time the will is executed, often many, if not all, of these descendants have not yet been born.1
If it is the testator’s wish that gifts or shares pass to the descendants of multiple contingent beneficiaries, then there must be language that anticipates what will happen if some contingent beneficiaries survive, and one or more do not. To account for this possibility, the testator must decide how the gifts or shares will be divided between the contingent beneficiaries and the descendants of the deceased contingent beneficiary (by right of representation, per capita at each generation, or share and share alike).
As you can imagine, anticipating how the estate is divided becomes increasingly complex if the testator has multiple, named contingent beneficiaries and anticipates multiple descendants from each. In addition, it is possible that some descendants will be minors at the death of the testator. Therefore, the will should provide guidance on how gifts or shares passing to minors will be managed until those minors reach a certain age (e.g. held in a custodianship or a trust).
Another possibility is that the tangible personal property of the testator will change over time, as does who the testator wants to leave these items to. This is a broad category of property and includes many items commonly thought of as family heirlooms. If the testator lives to an age where he or she has grandchildren, or even great-grandchildren, it is foreseeable that, over time, the testator may change his or her mind about who is given what.
In the State of Washington, the testator can create a writing disposing of tangible personal property. This document is a separate document from the will and allows the testator the flexibility to revise these gifts without having to make changes to the will itself. To be valid the document must: be referred to in the will; be in the handwriting of, or signed by, the testator; and describe the items and their recipients with reasonable certainty.2
Changes can also be addressed by executing a document called a codicil. For example, perhaps the testator would like to change his or her choice for personal representative or guardian of his or her minor children for some reason other than that person’s death. Or perhaps the testator would like only to change the amount of a specific gift to a beneficiary. Rather than draft a whole new will, a codicil can accomplish these changes.
Major changes in circumstances may warrant executing an entirely new will. If the testator suddenly comes into a lot of money or amasses significant wealth over time, then it is likely prudent to execute a new will (or estate plan) in order to address estate tax liability. In addition, if the testator divorces, remarries, or adopts/has a child, then he or she should evaluate whether to execute a new will.
There are countless ways that a testator’s circumstances can change between the day their will is executed and the day of their death. If you want to (or need to) make changes to your will, these are some of the ways to do it and things to think about. Then again, if the will was thoroughly thought out and well written in the first place, it may turn out that you need not make any changes at all.