Posted on May 13, 2015 by Marshall T. Minton
Our first advice on wills is to make sure you have one. And once you have a will, review it periodically and consider whether it needs an update. While wills never expire, your life circumstances do change, and a will that hasn’t been updated will complicate matters for your family when you are gone, and ultimately, may not reflect your wishes.
Here’s when you should review your will.
Death, marriage and divorce
Especially at death, people may postpone a task, such as updating a will, if it reminds them of their loss. Don’t delay updating your will if a key person, such as a spouse, has been added or taken away from your life.
While everyone will change their will after a divorce, they may want to consider updating their will in the separation phase of a breakup if there’s no prospect of reconciliation. The fact that you haven’t lived together in years and don’t speak to each other means nothing in probate, which will be guided solely by what the will says.
Children grow up
If you have minor children, you may have written a will that leaves them part of your estate with provisions that recognize they can’t manage their own affairs. Once they are adults, different estate planning considerations are triggered and you’ll want to write a will that addresses their circumstances.
At some point, your children’s children may also figure into your plans, and you may want to provide for them if your son or daughter dies.
As you accumulate more assets, inheritance takes on more importance, and you may want to rethink your plans, since you now have the luxury of including more beneficiaries in your will.
Starting a new business also is a good time to review your will as part of your succession planning. Tax planning likely will take into consideration both your business and personal estate.
Can your personal representative still handle the responsibility?
Choosing an executor – or as we call it in South Carolina, a personal representative – is often a tough decision. It should be someone you trust and whose judgment will be leavened by familiarity with your wishes, and, ideally, someone local, because many of the things they’ll have to do will require access to your home.
Because of the trust factor, people often end up choosing a relative such as sibling, but as they get older they may not be able to handle the demanding role of executor, which can take a lot of time and energy. Ask yourself if your personal representative can still handle this responsibility.
All probate matters are guided by state laws. If you move to another state, always have your lawyer review your will. For example, state laws differ on whether step-children meet the probate definition of children, what portion of your estate is subject to taxation and what happens if you and your spouse die at the same time. States also differ on whether a will has to be witnessed and notarized, which could provide grounds for invalidating your will.
Keep your intentions clear
As you get older, heirs may question your judgment if you make changes in your will that are not to their liking. While it’s difficult to challenge the validity of wills, you may want to go the extra mile to explain to your family why you made a change or included an unusual provision. We suggest attaching a letter to the will that explains your intentions, and you should also explain it to your lawyer, who will take notes and preserve them in the event the will is challenged.
In South Carolina, we have what is called a dead man’s statute, which means a party with an interest in the outcome of a probate case can’t testify as to what the deceased said about their intentions in writing a will. Your lawyer, however, is not an interested party, and can be a valuable witness to help ensure that your intentions are carried out effectively.
Marshall Tinsley is an attorney in Turner Padget’s Columbia, S.C. office, where she practices in estate planning, probate administration and probate litigation. Her advice on estate planning is underpinned by an undergraduate degree in financial management and an LLM in taxation. She may be reached at (803) 227-4249 or by email at email@example.com.