By Brian A. Raphan
If you already have a will, then you actually are ahead of the game. But do you really remember what your wishes were when you had it prepared? Do you remember where you put your copy of the will? In a file cabinet? A safe deposit box?
In any event it's recommended that anyone who's drafted a will review it every few years, for the following reasons:
- Relationships change: Maybe your relationships with people named in your will have changed over the years. Perhaps your favorite niece isn't so favorite anymore and you don't want to leave her your jewelry. Maybe your assets have grown substantially and you want your favorite charity to benefit. Or a second marriage has brought loving and wonderful new people into your life. Or there have been births of grandchildren, nieces, and nephews that you want to add to your will. Whatever your circumstance, it's recommended that you review your will and name a guardian(s) in the event something happens to you or your spouse. Also, if your children have reached the age of majority, you may wish to consider revising certain bequests, or name them as executors. Go through your list of heirs, guardians, trustees and executors. Consider their circumstances. For example, are they still of sound mind and capable of serving in the role you have designated for them? Has a family member included in your will passed away or become incapacitated? These are some reasons you may need to immediately update the language in your will.
- Assets change: If your estate has experienced a substantial increase or decrease in value, it's important take another look at your will. Are there tax consequences associated with your existing will? Maybe you bought or sold a major asset, or started a new business. Perhaps you have acquired a new, sentimentally-valuable belonging that you know a loved one will cherish?
- Locations change: If you have moved out of the state where you executed your will, you should consult an attorney in your new location to determine whether it is still valid. State laws vary, so you shouldn't assume that your old will meets your new state's requirements.
- Regular check-ups: If you haven't looked at your will in a few years, then right now is probably a very good time to begin your initial review. You won't need a lawyer for that. Start out simple. How do you feel about the people named in your will? Look at your division of assets. If questions or adjustments arise, then it may be time to give your attorney a call. It is recommended that individuals review their wills when they turn 65, as this is roughly the age when individuals retire or begin thinking about retirement. Age 701⁄2 is another important milestone since IRA, 401(k) and other qualified plans require individuals to begin taking minimum distributions at this time.
- Tax laws change : State and federal tax laws are constantly changing and you will want to be aware of any changes that may affect you. You may only need a will–an essential cornerstone of estate planning–but as your wealth, assets and circumstances change, you may want to engage in more comprehensive estate planning. Be informed and consult with an attorney who specializes in wills and estate planning. Elder law attorneys often have in-depth knowledge in this area of law and many firms (like mine) offer free consultations to help seniors and their families learn more about their estate planning options.
Use this checklist of factors to consider when reviewing a will:
- Birth or adoption of a child/grandchild
- Death of someone named in your will
- Children have reached the age of eighteen
- A change in the circumstances of your executor, guardians, trustees, etc.
- You would like to provide for a charitable or other organization
- An increase or decrease in the value of your estate
- You started a business
- A change in tax laws
- You are approaching the age at which you are required to begin taking distributions from your IRA, 401(k) or other qualified plan
- You moved out of state
- It has been three years or more since you have reviewed your will
If you do decide to make a change to your will, seek a local attorney to assure all the proper legal steps are taken. It does not have to be the original attorney that drafted your will.
Brian A. Raphan is the founder and lead attorney of The Law Offices of Brian A. Raphan in New York, NY. His blog "Elder Law News" covers timely legal news facing New Yorkers and he frequently gives pro bono lectures on legal matters facing the elderly.