The vital importance of updating and protecting your will

If you just created a will, your will already reflects your current wishes concerning your estate plan. But if you created one a few years or decades ago, there’s a reasonable chance that it might be outdated.

How do you know if your will is out of date? At a minimum, you want to update your will after any major life event. This includes:

Most of these are self-explanatory as to why these events might require a will update, although a few warrant further explanation. For instance, you might think it’s best to wait until you file for divorce before you change your will. This may not be the wisest thing to do, as some state laws may restrict your ability to change your will during divorce proceedings.

If you have an idea of how you want to change your will and the changes may affect the spouse you plan on divorcing, then it’s a good idea to talk to your prospective divorce attorney first. They can give you a clearer picture of how to make the changes to your estate plan without adversely affecting your divorce proceeding.

It should also be noted that you may not want to first discuss the changes with the attorney who created the will for you and your spouse. This is because there could be conflict-of-interest issues.

When you created your will, this attorney likely created one for your spouse, too. As a result, this attorney represented both you and your spouse, as the objectives and wishes of you and your spouse were the same, or at least not contrary to each other.

Now, you and your spouse are adversarial parties and to make changes to your will, your attorney might obtain information from you that they need to keep from your spouse. What happens if this attorney modifying your will still has an attorney-client relationship with your spouse?

You can see the ethical predicament this can create. This isn’t to say that it’s impossible to have this attorney help you update your will, but you might want to plan on finding a new attorney to complete this task, just in case.

If you move to a different state, your new state should honor the validity of your will and its contents from your prior state. However, there could be slight differences in state tax and probate law that could affect how your wishes get carried out.

This also applies to moving to a new country, as many counties have special agreements with the United States so that your wishes in your current will are honored in your new home country. It’s best to see if any changes in the law of your new home country affect your current will. If so, it might be a good idea to create an estate plan in your new country and/or modify your existing estate plan.

These are some common reasons to change or update a will, but they all rely on the premise that there’s a valid will that an executor or administrator can present to the probate court and carry out. As bad as it is to have an outdated will, it’s also bad to have no will at all. This is what could happen if a current, valid will gets lost or destroyed.

There are three main risks to a current will: losing it, having it damaged or destroyed and having someone change it without your permission. What’s the best way to avoid these risks? There are many possible solutions, but none are perfect. That’s because they won’t apply to all people and in all situations.

A safe deposit box at a bank is an option, but this has significant potential problems. For instance, how can your executor present your will to the probate court if you’re the only person authorized to access the safe deposit box and you die suddenly? The answer is that they may not be able to, or there’s a notable delay in carrying out the wishes in your will. Understand that the authorization to access your safe deposit box comes from the will, but the person you’ve chosen to be your heir or executor isn’t authorized to access your safe deposit box.

OK, instead you decide to let your executor serve as an additional authorized individual to access your safe deposit box. But have you accounted for a situation where you and your executor no longer get along? In this scenario, you run the risk of the person with access to your safe deposit box altering or destroying your will.

You could keep the original copy of your will at your attorney’s office or in a safe in your home. But both locations are at potential risk for burglary or a natural disaster like a flood, hurricane or tornado.

Another possibility is keeping the original in one location and having copies in a secondary location. For example, the original copy of your will could be at your home, but a copy could be held by your lawyer, executor or personal representative. However, there’s a risk (however small) that whoever is holding the copy will change it and claim it’s the most up-to-date version of your will. There’s also the chance they could lose it or accidentally destroy it.

There are still other possibilities for storing your will, yet none of these are perfect solutions because there can be only one original. There’s also the fact that you need to strike a balance between protecting the will and having it easily accessible when needed.

An example of this involves hiding your will. The problem with hiding your will is that you’re the only person who knows where it is and if you die unexpectedly, no one will ever find it.

Sure, you could tell one or two other people where you hid it, but then you have the risk of one of those people making changes to your will without you knowing it. As you can see, there’s a fine line between protecting your will and allowing the necessary people to access your will when the time comes.

The exact process depends on applicable state law. As a general rule, if the original will can’t be found because it’s lost or destroyed (or there’s a reasonable chance it’s lost or destroyed), then the probate court will presume the decedent has no will. That’s the bad news.

The good news is that a probate court in many states will accept a copy of a will, but only if there’s ample evidence to convince the judge that the copy represented the deceased’s wishes. This will typically require the executor or other representative of the decedent’s estate to show:

Assuming these elements exist, there’s a good chance the court will probate the copy instead of the original. Let’s look at an example to see how this might work.

Bob keeps the original copy of the will in a safe at home. His brother and executor, Dan, has a copy, as does Bob’s attorney. Bob dies when a flood sweeps through his home while Bob is sleeping. Not only does Bob die in the flood, many of his belongings are also lost, including his safe and everything inside it.

Dan presented a copy of the will to the probate court while Bob’s attorney submits a recording of a voicemail Bob left on the office phone a few weeks before the flood. The voicemail recording consisted of Bob thanking his attorney for checking in to see if he wanted to update his will, but that no changes were necessary. Bob’s attorney and paralegal also testify in court about how the original will was properly executed and all formalities were followed. Assuming no one tries to contest its validity, the probate court is likely going to accept the copy.

Let’s change things around a bit so that all the facts are the same, except the will wasn’t lost. Instead, it was found waterlogged, unreadable and ripped in half in Bob’s locked safe.

Now, we have evidence to indicate that Bob wanted to void his will. This evidence comes from the fact that the entire will has been ripped in half. This was a deliberate act and absent special circumstances saying otherwise, most likely indicates that Bob wanted to destroy and nullify his will. In this situation, the probate court could conclude that Bob has died without a will and will probate his estate under the state’s intestacy statutes.

The bottom line is that under the laws of many states, if the original copy of a will gets lost or destroyed, the probate court will assume the deceased has no will. It’s then up to the executor, heirs or other representatives to show that an existing copy reflects what was in the original will and that the original will can’t be found or that its destruction was accidental.