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Many individuals breathe a sigh of relief once their Last Will and Testament has been signed and witnessed, believing the hard work and sometimes difficult decisions involved in crafting an estate plan to be finally complete. The reality, however, is that most people will need to review their estate plans periodically and make revisions as their lives and loved ones change.
In this blog post, we discuss the importance of updating your Will. Knowing when to revise Wills may not always be easy, but as a general rule most testators (people who have created Wills) can consider it a good practice to review their estate planning documents every five years in the absence of any major life changes. If major changes – such as the addition or estrangement of family members, or substantial shifts in the testator’s long-term personal or financial goals – do occur, then updating your Will sooner may be important.
A legal adult of sound mind who already has a valid Last Will and Testament can choose to update it at any time. In the absence of any major changes in your own circumstances or those of individuals named in the Will, reviewing the Will and other estate planning documents about every five years may be sufficient.
There are a few situations, however, in which updating your Will can be especially important, no matter how recently the estate plan was reviewed. Individuals may wish to consider updating their estate plans when any of the following apply:
Some of these factors are likely to occur with greater frequency than others, but any of them may be a good reason to review estate planning documents and consider making updates. Understanding why revisions to the Will and other documents may be needed can help individuals to make informed decisions about what changes to make, and how to implement them.
One major indicator of when to revise Wills is the addition of new family members – typically through birth, adoption, or marriage. There can be a variety of factors to consider in updating your Will after your own or a child’s marriage or remarriage, and of course the expansion of any family by birth or adoption can be a good time to revise estate plans – especially if the addition of a new family member also adds another generation to the family tree. Whether you are getting married or remarried yourself and wish to account for your new spouse and potentially your new stepchildren, or someone close to you has recently begun to grow their nuclear household, additions to the family may prompt some updates to your overall estate plan.
If you have recently gotten married, then both you and your new spouse will likely want to revise estate plans to take each other, and both of your families, into account. This can be especially important when the marriage is a remarriage for one or both partners. While some couples tend to assume that their state’s probate code will ensure each spouse is provided for in the event of the other’s death, updating your Wills together after a wedding provides significantly greater freedom of choice regarding the provisions each spouse can make for the other, and offers both testators an opportunity to update other beneficiary designations at the same time.
In the absence of a valid Last Will and Testament, Ohio’s intestacy laws dictate that a decedent’s estate will pass to a surviving spouse, as long as all of the decedent’s children are also children of the surviving spouse. If the decedent has died “with issue” (has left behind children) who are not also children of the surviving spouse, then the estate will be divided between the surviving spouse and the children. If there is no surviving spouse, but the decedent died with issue, the estate will be divided among the children or their linear descendants “per stirpes,” which typically means that an equal share will be apportioned to each child, with the caveat that if any child of the decedent has predeceased the decedent, but the child died with issue, that child’s share of the estate will be not be distributed among his or her surviving siblings; rather, that child’s share will itself be divided and distributed per stirpes among his or her children, according to O.R.H. § 2105.06, Ohio’s Statute of Descent and Distribution.
In many cases this system of distribution is not far removed from what a testator might choose to specify. The major point of creating a Will, however, is precisely to divide one’s estate according to personal preference, rather than relying on state intestacy laws. For this very reason, a legally valid Will will supersede the application of § 2105.06. This means that if a testator has a child after attesting their Will, that child may not be provided for in the document and as a result may not be able to inherit from the individual’s estate unless the Will is updated.
While births, marriages, and adoptions all expand a family and in most cases are recognized as joyous occasions, there are sometimes sadder reasons that can indicate when to revise Wills. Families do sometimes shrink as well as grow, and to ensure maximum benefit an estate plan should be current as well as comprehensive.
If an Ohio resident gets a divorce after creating a Last Will and Testament, O.R.C. § 2107.33 will ensure that the probate court treats any provisions in the Will that mention the decedent’s former spouse as if the spouse had “failed to survive” the testator. While this means that an ex-partner with whom you may or may not be on good terms is unlikely to benefit from your estate at the expense of other individuals with whom you might have a closer relationship, it does not necessarily mean that any assets the Will previously designated for the person to whom you are no longer married will go instead to the person you would now most wish to have them.
After your own divorce, therefore, is a good time to revise estate plans and take a special look at any documents, including the Will, that may have named the former spouse in any capacity. Even if you decide, based on the relationship the two of you now have, that the former partner should still be included in the updated estate plan, it can still be important to review the relevant documents to make those intentions explicit. An Ohio estate planning attorney with Rhodium Law may be able to advise you concerning the specific provisions that may apply to your situation.
Determining exactly when to revise Wills and other estate planning documents in light of family members’ changing circumstances can involve a delicate decision-making process. In general, however, if a close family member – such as a child, parent, or sibling, has recently gotten divorced or is currently going through the divorce process, that may be a signal that it is time to revise estate plans. Updating your Will after a family member’s divorce can be especially important if the ex-spouse is someone with whom you have a changed, but nonetheless significant, relationship – for instance if the person is a parent to your grandchildren, or to nieces or nephews with whom you are close.
Since a Last Will and Testament is drafted primarily to enable the testator to provide instructions for how they would like their final affairs to be managed, and the property remaining in their estate to be distributed, after they are gone, these documents are typically written in the expectation that any beneficiaries identified in the Will will survive the testator. Sadly, however, in some instances this is not the case, and the untimely death of a loved one – through accident, illness, or tragic acts of violence – can be among the most painful reasons individuals revise Wills. As difficult as the process may be, it is crucial to review your estate plan and consider updating your Will after the death of a beneficiary, especially if the deceased beneficiary was someone to whom you had intended to leave items of personal property with special emotional significance, or if the individual was designated by name to receive specific assets.
Beneficiaries are not the only parties relevant to Wills. If the individual named as Executor of your estate dies before you – or if the relationship you have with that person undergoes a change – either of those factors can also make it advisable to take a step back, review your existing estate planning documents, and consider updating your Will. Changes in the testator’s own financial situation or personal priorities are also common indicators for when to revise estate plans. Reviewing the Will and other estate planning documents periodically with an estate planning lawyer may help you to recognize when updates are needed, and ensure any changes are applied in a timely manner.
The estate planning team at Rhodium Law takes special pride in helping our clients develop carefully tailored estate plans that directly address their individual needs and circumstances. Whether you already make a practice of reviewing your estate planning documents regularly or are considering updating your Will for the first time, our knowledgeable and dedicated staff are here to support our clients’ goals by helping them revise estate plans to keep pace with their evolving goals and circumstances.
Knowing when to revise Wills and what updates to other estate planning tools may be needed to maintain consistency can involve a number of considerations, so consider taking advantage of a free consultation to discuss your situation. Call Rhodium Law at (216) 699-8145 today from anywhere in Ohio to schedule your initial consultation.
