If you have a will, you understand the importance of ensuring your final wishes are known ahead of time.
But what if you don't update your will? It might not reflect your current life situation. It's best to review your will every three to five years or whenever you experience a major life change. Generally speaking, a new will supersedes an older one; probate laws, however, vary by state. To help prevent confusion and potential disputes, consider how to handle updates to your will.
Major vs. Minor Changes: The Best Options According to Your Situation
For major life changes, such as a divorce, a remarriage, or a new addition to the family, it's better to create a new will.
If you need to make only a few changes, you may amend your will through a supplement known as a codicil. In either case, per state law, you will need to confirm your changes with your signature. In Maine, you must sign your will in front of at least two witnesses.
How a New Will Can Replace an Old Will in Maine
Revoking a will legally invalidates it. If you're of sound mind, you may revoke a will at any time, just as you can a power of attorney, an advance health-care directive, and some trusts.
A new will should state that it revokes all prior wills and codicils. Whether or not a will has that clause, under Maine law, unless there's "clear and convincing evidence" to the contrary, a new will revokes (rather than supplements) an old one. (You can also revoke a will without making a new one, and you can even "revive" a will you revoked earlier, in whole or in part.) If a new will doesn't expressly revoke a prior will, to prevent confusion and potential challenges to its validity, the old one should be destroyed.
According current Maine probate law, if a new will doesn't specifically revoke an old will, the following rules apply:
- The execution of the new will revokes the previous will by "inconsistency" if the will-maker (or "testator") intended the newer will to replace rather than supplement the prior one.
- If a will-maker completely disposes of all assets of their estate in a new will, they are presumed to have intended it to replace rather than supplement a prior one. If this presumption arises and clear and convincing evidence doesn't rebut it, the prior will is revoked; only the new will is valid upon death.
- A will-maker is presumed to have intended a new will to supplement rather than replace a prior will if the new will doesn't completely dispose of their estate. If this presumption arises and clear and convincing evidence doesn't rebut it, the newer will revokes the older will if the new will is inconsistent with the prior one. Each will is fully valid on the will-maker's death if they aren't inconsistent.
Under a revocable trust, a "pour-over" will usually states that upon the trust-maker's death, the estate property will go to the manager or trustee of the trust. To make changes to this type of estate plan, one would amend the trust rather than revoke a pour-over will or make a new one. If you have this type of complex estate plan, talk to an estate planning attorney before you update your will or amend a trust.
Before Making a New Will: Potential Changes of Circumstance
In Maine, with few exceptions, a change of circumstances doesn't necessarily revoke an entire will. For example, if a Maine will-maker gets divorced (or a court finds their marriage is illegal), state law revokes language in their will that leaves property to a spouse or names one as executor. However, if the will-maker remarries their ex or if they specifically state in their will (or divorce decree) that a divorce shouldn't affect the will's terms, these rules won't apply.
Closing the Loop to Reduce Future Issues
If you decide to change your will, notifying your personal representative(s) and any heirs can help prevent problems later. Otherwise, doubts could arise, which could lead to a will contest - an extended court fight - or at least extensive research to determine if you left other evidence of your final wishes.
If you're concerned about how a major life change could affect your will, contact us online or call (207) 377-6966. We also offer legal guidance on drafting or revoking a will according to Maine law.
