A lot of people start thinking about updating or making a new Will when they move out of state or buy or sell a home; however, that is not necessarily the case. There are other situations in which it almost always makes sense to make a new Will or at least update the old one. As with a lot of areas of the law, the answer depends on the individual facts of the situation.
First, getting separated, divorced, or remarried is an excellent reason to update your Estate Plan. The good news is that North Carolina law does prevent your former spouse from inheriting under any provision of the Will in their favor. It also revokes any provision that appoints them as Executor, Conservator, Guardian, or Trustee. The bad news is that your former spouse can still petition the Court for an elective share of your estate, even after you have remarried. While the details of that procedure are outside the scope of this discussion, North Carolina does not allow someone to disinherit their spouse entirely. Regardless of what the Will says, a former spouse has a right to opt for a certain percentage of your real estate and personal property after your death. In addition, the law will not automatically provide for your new spouse absent a specific provision in the Will naming them. People should at least amend their Wills to remove their spouses upon becoming separated and if they have not already done so, they should make a new Will by the time they are remarried.
Moving out of state, by itself, does not require someone to update or redraft their Will as long as the Will complies with the requirements for a Will in North Carolina. However, the more important issue is whether or not a Will is self-proven. A self-proven Will stops the Executor from having to track down the witnesses to the Testator’s signature and allows them simply to provide an original of the Will to the Court to start probate proceedings. Some state’s laws may not allow for self-proving Wills. Other Wills may be missing the appropriate affidavits for some other reason. The person making the Will, the Testator, should have their Will reviewed to make sure that it complies with the requirements for a self-proven Will.
Whether acquiring or disposing of an asset requires a new Will is a matter of how the property is referred to in the original Will and how the Testator wants their property divided. If a Will gives a specific asset to a particular heir, and that asset has been sold prior to your passing, then the heir may not be very quick to accept that they are not supposed to inherit from your Will. Similarly, sometimes people create conflict between the executor and the heirs when they give personal property away prior to their passing, personal property that one or more heirs will expect to still be in the estate. There is a high potential for animosity when dividing up assets with a lot of financial or sentimental value at a time when emotions are already running high. A Will is an opportunity to prevent conflicts and make things simpler on your heirs by making and communicating decisions in advance. As a result, sometimes updating or making a new Will is just a matter of simplifying the estate plan and removing parts of it that are no longer relevant to avoid problems among the heirs.
The birth or adoption of a new child is also a good reason to update or amend a Will. North Carolina law does contain a provision that includes after-born or adopted children in the inheritance, but also contains exceptions to that rule. That is to say that if you created a Will, then later adopted a new child and named them a beneficiary of your life insurance policy, but did not include them in your Will, then the provision referred to above will not apply and your adopted child will not inherit under your Will. In addition, as discussed above, a lack of clarity in your estate plan is really a recipe for your heirs to fight over how to construe the Will and transfer your assets.
Estate planning is an area of life in which the old saying, “An ounce of prevention is worth a pound of cure,” is particularly true. Contact the Humphries Law Firm to schedule an appointment to discuss your Estate Planning needs.