First, put down the red pen. Second, call your estate planning attorney.
Can I Handwrite My Changes on the Will?
A court reviewing a signed Will must determine the validity of the Will. In Texas, a Will is valid if it is typed and then signed by the person making the Will, or if it is entirely in their own handwriting (Holographic Will). However, revisions made to a Will after it is signed are invalid. Additionally, a Will with excessive revisions could be denied probate. Therefore, you should never write or draw on your signed Will or other estate planning documents.
What About Fill-In-The-Blank Will Forms?
There are all kinds of Wills for sale on the Internet including many of the Do-It-Yourself variety such as fill-in-the-blank forms. Handwritten revisions and interlineations on a Will are permitted prior to execution and signature of the Will. However, there exists a legal presumption that any visible alterations and interlineations occurred after the Will is signed. Therefore, anyone offering a “fill-in-the-blank Will” for probate has the burden of proving that the blanks were filled in prior to the signing ceremony.
In Texas, all Wills other than Holographic Wills, must be signed by the person making the Will in the presence of two competent witnesses. The witnesses also sign the Will attesting to the signature of the person making the Will. If revisions have been made to a Will at the signing ceremony, the witnesses and the person making the Will could initial each change to help ensure the typed Will and any handwritten revisions are admitted to probate. Even doing so, however, the witnesses should be prepared for the eventuality of being called to testify in court about the timing of any handwritten Will revisions.
How to Make a Valid Will Amendment
There are two preferred methods for making a change to a Will: (1) by Codicil or (2) by making a new Will. A Codicil is a written amendment to a Will that only changes certain provisions of a Will. A properly executed Codicil republishes the prior Will with the changes indicated in the Codicil. However, a Codicil must be signed and witnessed with the same formalities as the original Will.
The downside to a Codicil is that the Codicil and the original Will must be offered for probate together for the amendments in the Codicil to be effective. There is great danger that the Codicil and Will could be separated in the intervening time between signing the Codicil and a person’s death. Therefore, when making important changes to a Will, it is best just to make a new Will that revokes the prior Will and supersedes it.
Other Ways to Change an Estate Plan
A well-drafted Will includes a contingency plan for named beneficiaries or appointed Executors who later predecease the Testator (the person making the Will). But what about a person who needs to make frequent changes to their disposition plan? This is especially the case when gifting specific property or cash amounts. As the years change, a person’s estate changes. The property they had gifted in the Will may be sold or their estate value increases or decreases so much so that the cash gifts are inconsistent with their original plan.
For those who anticipate making frequent changes to their disposition plan or gifting strategy, using a revocable living trust may be a better option. A revocable living trust can be amended at anytime during a person’s lifetime and need only be signed by the person making the trust. As such, it is much easier to amend a revocable living trust than a Will as there is no need for a formal signing ceremony complete with witnesses and a notary. Additionally, the assets transferred to a revocable living trust pass to the trust beneficiaries outside of the probate process. Because the trust distributions occur separate from probate, the document and its gifting plan remains private.
If you have questions or would like to schedule a meeting with an attorney at Loveland | Grace | Hurley, PLLC about amending your estate plan, please contact us to schedule an appointment. We offer appointments in-person as well as by phone and video conference.