If you are thinking of changing your Last Will and Testament, do not do so yourself. Although any adult with mental competency can change his or her last will and testament at any time, it cannot be amended by simply writing the changes onto the document. There are two ways to validly “amend” the terms of a last will and testament. The first is to sign a codicil. A codicil is a short document that serves to change the terms of an existing will. The requirements of executing a codicil are the same as for a will. The second is to sign a new will document. Each will that is signed is the last… as it revokes any previously executed document. Executing a new will is the superior method of amending the terms as it keeps all of the terms in one completed document.
According to New York State law, an individual is mentally competent to sign a will if he or she can identify their next of kin, is aware of the assets they have, and understands the consequences of signing the will and the plan it will put in place. To be valid, a last will and testament must have the signature of two witnesses who are over the age of 18. Those witnesses can also sign an affidavit that is notarized stating, among other things, that the testator was of sound mind and stated that they intended the signed document to be their last will and testament. The affidavit should also state if the will was signed in the presence of the attorney that drafted it, and if it was, there is a legal presumption that the document is valid.
It is advisable to review estate planning documents every five years or when a major life change happens, birth, death, retirement, etc. Seeking the advice of an attorney to determine how your assets will be distributed at your death is invaluable to ensuring your wishes are fully carried out. The will determines the after-death distribution of any assets in your sole name with no beneficiary. The document can say if the assets will be distributed outright or in trust and what the terms of that trust may be. It can nominate who will serve as executor and, for parents of minor children, can state who they wish to name as legal guardian.
A last will and testament should be amended throughout time to account for changes in situation, assets, and potential beneficiaries. Often, there is not much difference in cost between executing a new Will and a codicil.
- Britt Burner, Esq. and Nancy Burner, Esq.