Introduction:
Things change. Life changes family connections, relationships, and necessities. When that happens, it is wise to alter one's estate plan, be it amending the Will or the Trust. One can either amend or create a brand-new document.
But what happens to the old Will and Trust? If one creates a new Will, does that automatically revoke the old one? If one loses the new Will, does the old one immediately become the operative document? Or is it the same as if one died without a Will since you revoked the earlier one?
And if one has copies of the old Will or Trust, should one destroy it?
Those are the topics of this article.
The Basic Statutory Law:
CALIFORNIA PROBATE CODE SECTION 6120-6124
6120. A will or any part thereof is revoked by any of the following:
(a) A subsequent will which revokes the prior will or part expressly or by inconsistency.
(b) Being burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction.
6121. A will executed in duplicate or any part thereof is revoked if one of the duplicates is burned, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking it, by either (1) the testator or (2) another person in the testator's presence and by the testator's direction.
(The sections following deal with the effect of dissolution of marriage and are omitted.)
6123. (a) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by acts under Section 6120 or 6121, the first will is revoked in whole or in part unless it is evident from the circumstances of the revocation of the second will or from the testator's contemporary or subsequent declarations that the testator intended the first will to take effect as executed.
(b) If a second will which, had it remained effective at death, would have revoked the first will in whole or in part, is thereafter revoked by a third will, the first will is revoked in whole or in part, except to the extent it appears from the terms of the third will that the testator intended the first will to take effect.
6124. If the testator's will was last in the testator's possession, the testator was competent until death, and neither the will nor a duplicate original of the will can be found after the testator's death, it is presumed that the testator destroyed the will with intent to revoke it. This presumption is a presumption affecting the burden of producing evidence.
(It should be emphasized that Section 6124 only creates a presumption of evidence: that presumption can be overcome by appropriate convincing evidence. For instance, if the Will was burned but it is proven that the testator had no intention to destroy it and it was burned in an accidental house fire, then the Will may be supported by the Court.
And if the Will is lost, there can be myriad reasons why this was not meant to act as a revocation. The testator could have been suffering from dementia or have housekeepers who do not speak the language and thereupon threw it out. A full investigation is warranted by the Court and the parties.)
Steps to Take:
MAKE A NEW WILL OR TRUST THAT REVOKES THE OLD WILL OR TRUST:
The easiest and smartest way to revoke is to create a new document that specifically refers to the revocation of the old document. Whether the old document is destroyed or not, so long as the new document remains in effect, the old document no longer legally exists to alter the estate plan.
ENSURE THE NEW WILL OR TRUST IS KEPT IN A SAFE LOCALE.
The way to avoid any arguments about whether an old Will or Trust remains in effect is to ensure the safety of the new document. This means a copy should be in a fireproof safe and also that writings are sent to the named trustees or executors indicating where the new document is located AND that it is your intent to supersede and void the old documents.
STORE AN EXECUTED COPY OF THE NEW DOCUMENTS WITH YOUR ATTORNEY.
Most attorneys have a fireproof safe and will keep a copy for you if asked. If the attorney will not, use a safe deposit box at a bank but be sure to leave word with your family where the copy is located and how to gain access to the box.
KNOW HOW MANY COPIES OF THE PRIOR WILL EXIST AND LOCATE THEM.
At times a client will destroy several copies of the Will but will forget how many actually exist and fail to destroy one that can resurface and cause confusion and even litigation. Assuming a new Will is created, this is not a major problem but if one is simply destroying all copies, make sure all such copies are destroyed.
TELL THE PEOPLE THAT MATTER IN WRITING WHAT YOU WANT.
While your estate plan is a private document and need not be shared with anyone, you do not have to keep it private. If you plan to alter your Will, a good first step is to let key people know that. If your intentions are ever a matter of confusion, you will have clarified it. NOTE THAT SIMPLY PUTTING YOUR INTENTIONS IN WRITING DOES NOT CREATE A WILL. Various formalities must be observed and a common mistake we see is people thinking that a letter typed, signed, and delivered to a relative creates a binding Will. It does not.
Steps to Avoid:
HAVING NUMEROUS OLD VERSIONS HANGING ABOUT.
Any variation in any of the old plans with the new plan can both cause confusion and act as an incentive for some disgruntled heir to start a Will contest. You need to revoke all past Wills, centralize and nullify all past Wills, and make sure that if you cannot locate every copy that you have writings that revoke them.
MISSTATING YOUR INTENTIONS TO YOUR HEIRS.
Often when pressured or asked about the estate plan, testators avoid confrontation by evading the truth or outright misleading heirs. This not only results in bitter recriminations after death but can result in expensive and painful litigation. If you do not want to reveal your actual intentions, say that. It is only your own business and you are under no legal obligation to advise anyone as to your intentions.
THINKING THAT A DISINHERITANCE CLAUSE WILL STOP ANY CHALLENGES.
California courts are loathe to enforce disinheritance clauses and the law is becoming more hostile to those clauses every year.
CHANGING YOUR ESTATE PLAN OFTEN.
Nothing can encourage fights after death more than having numerous plans altering year to year. As death approaches, there is a tendency to want to change things or to use the inheritance to maintain power and prestige within the family. Resist that urge. Changes are certainly possible and often called for, but if you are changing your plan several times a year it is time to stop and consider why that is the case.
Conclusion:
Creating a new estate plan requires care in eliminating the old estate plan and failure to take the various steps above can not only cause family turmoil but can defeat the actual estate plan that you are seeking to effectuate. The steps for voiding earlier estate plans are not difficult but must be kept in mind.
The worst-case scenario is when a person, writing out his own Will, refers to clauses in an earlier version and seeks to incorporate parts of, but not all, the earlier Will. This almost always guarantees a fight. Be smart. If creating a new Will, make sure the old Will is entirely revoked and if you wish salient parts of the old estate plan to remain, restate them in full in the new estate plan.