I have many clients that come into my office that have written, scribbled, crossed-out, or marked all over their estate planning documents. This can be a big mistake with big consequences!
What should you do if you have a Will or a Trust that you wish to change, amend or revoke? One thing people frequently try to do when they want to amend a Will is to cross out whatever change they want, and write in new directions and initial next to their marking.
A thing to remember is that your Last Will and Testament and/or Revocable Trust typically serves as the foundation for a comprehensive estate plan. Similar to most legal documents, your Will or Trust should be reviewed and formally amended on a regular basis (usually every 3-5 years); however, this needs to be accomplished with the assistance of an attorney, and done in the formal matter required by statutes. For a Will, that includes two witnesses and a notary. For a Trust, that includes whatever way the Trust document prescribed (usually a notary). Your Will and Trust is not like other legal documents where simply marking or crossing something out and initialing the change will suffice. In fact, usually it revokes the entire document.
I recently had a client who did such a thing – she wanted to get rid of a beneficiary, and simply crossed out the beneficiary she wanted out and initialed and dated next to the marking. She then passed away before we could do a formal amendment. The problem with this action is, at least in Oklahoma, marking and changing any Will or Trust without the formal amendment process actually revokes the entire document! The small amendment my deceased client wanted actually completely changed her entire estate plan. Her intention was for a friend to receive the entire estate. However, due to her scribble on her Will, her estate went through the intestate probate process, which means her (distant) family inherited her entire estate, which was completely against her intention.
Wills and Trusts have formal statutory requirements to keep fraud and misunderstandings from happening in the important process of estate administration and probate. If there is a question as to the authenticity of a Will, the Will, with markings on it, would no longer be clear as to what the Testator’s intentions were. This is precisely why the execution of your Last Will and Testament must be witnessed by an uninterested witness and a notary authenticating the signatures. Requiring a Will to be witnessed and notarized is the only way to be sure the Testator actually signed the document. If, however, you write on the Will or Trust after the original signing, there is no sure way to determine if you actually wrote the words or if a third party took the liberty after your death. If the probate court declares the Will or Trust to be revoked , your estate may end up being distributed as an intestate estate which could have very different results than if the Will is used to probate your estate.
If you desire to amend your Will or Trust, or even revoke it entirely, don’t try to do it yourself by writing on the documents. Take the time to consult with your estate planning attorney and make the changes or the revocation the right way, in front of witnesses, to ensure that your estate doesn’t wind up in costly litigation after your death.
If you have additional questions or concerns about wills, trusts, or estate planning in general, contact the experienced Oklahoma estate planning attorney at the Skillern Law Firm by calling 918-805-2511 or email skillernlaw@gmail.com to schedule your appointment.
