Can we do an updated will or do we have to have a trust?

Asked by

My husband and I our in our mid to upper 60's and a year ago we downsized (financial reasons) into a villa in an over 55 community. We have an outdated will in another state that was done over 25 years ago and we need to cancel this will and have another one done with our now life, financial changes, and changes of our wishes. We have only 1 daughter (48 yrs old) and have discussed our wishes with her about everything we have going to her, when her dad and I are no longer alive. She has also expressed that she would love to have our villa and inquiring if we can only do an updated will or do we have to have a trust? A trust is very expensive and we really can't afford to go to an attorney to have this done. Can we have a simple will or trust drawn up online through Legal Zoom? If we can have this done I then will write a letter to former attorney in other state and have letter notarized to cancel the former will, due to new will/trust drawn up. I know my brother and I had a POA drawn up through Legal Zoom for my parents and it has worked out well. Just don't know about wills and trusts.....Has anyone done a will or trust through Legal Zoom and if so was the cost reasonable and did it work out well?

Answers 1 to 10 of 16
I wrote my own trust, first a joint trust then later a single person's. If your holdings are simple you can write your own. They really are rather easy. There are outstanding how-to books on the market. If your holdings are complex or you feel they may be or you're leery, then I would recommend an estate attorney--I've never used Legal Zoom so that's why mentioned an attorney.

My first trust I wrote it after consulting a terrific how-to book and searches on expert websites then had an estate attorney review it. The cost of his consult was low, though I don't recall how much as it was a long time ago.
Top Answer
Sandy, I would highly recommend you go to an Elder Law Attorney to have a new Will drawn up, and at that time ask the Attorney about his/her opinion about doing a Trust.

I also would recommend having a Medical Directive drawn up which talks about your final health wishes. That will give your daughter some peace of mind on how you want to proceed medically, if at all. I was so glad my parents had that.

Also get your financial Power of Attorney and medical Power of Attorney updated. My parents originally only had each other as their POA, but when my Dad went to the hospital I couldn't give any consent as my Mom was POA, and Mom was very hard of hearing and almost blind being in her 90's. So my parents quickly got their POA updated to also include me [only child].

An Elder Law Attorney is also good to have just in case you should out live your finances, which can happen. These Attorneys know how to navigate through the Medicaid maze, again which will be helpful for your daughter.

And get the Wills updated ASAP. My parents Wills were older than dirt and the way the Wills were written would have created a terrible nightmare for me.



I’d spend the $ and get an atty in the new state to do a codicil to the old will and all the other documents FreqFlyer suggested. Ask about what can be done as “designated beneficiary” too.

Also your community, how does it have the age restriction enforced? Through a HOA? If so, there could be specific details needed in the property transfer document. If something happened next year, that’s 6 years before she could move in..... on the other hand what if your situation changes in another decade or two, you want the legal to be flexible enough yet be good for your states laws. Really having a good atty is worthwhile.

I’d ask around your community to find a couple of attys your neighbors have used and ask prices based on Freq’s list.
As I understand it Medicaid has a 'look back' time of 7 years, so get that trust done ASAP. Here is how I done mine 'on the cheap.' I went to the county courthouse and looked in the public records at the trusts on file. I selected one that was fairly recent and got a copy of it. I took it home and reprinted it on my computer, using my information instead of the original. Then, to make sure I didn't make some fatal mistake, I took it to an attorney for review. They changed a few things [to justify their fee, no doubt] and I filed it at the courthouse. All legal and at a very small price. And I can sleep easy at night knowing this issue is taken care of.
You and your husband are so thoughtful to do the necessary paperwork to make it easier on your daughter! My own parents haven’t changed anything in 25 years and it will eventually mean difficulties for me, their only child.

Their inertia has already made it difficult for me to effectively advocate for their benefit....
Sandyinstl, you also mentioned Legal Zoom. I have never used the company nor know of anyone personally who has. Check the Better Business Bureau. And check on-line for pro/con for using Legal Zoom.

One thing, when it comes to legal documents is is not a do-it-yourself project. All it takes is one misplaced word or one missing word to create havoc for your daughter. It is much better to have an Elder Law Attorney where you can drive to the office and sit face to face with the same person each time. They are familiar with the State laws and what might be coming down the pike. With the recent Tax Reform, that might tip the apple cart as States scramble to find ways to make up huge lost tax revenue that they had depended upon by large corporations in their States/Counties/Cities.

My parents have passed, and Dad's estate is still in Probate, but it has been so helpful having the Elder Law attorney and her Staff walking me thought this process, and actually doing the Probate required paperwork and knowing exactly who to call at the Court House.

I use an Elder Law Attorney who works for a large firm, thus if my Attorney should leave the firm, then there are other Elder Law Attorneys ready to step in to help her clients.

Yes, it can be expensive, but it can also be even more expensive if one tries to do it themselves which would cost them more if by chance there are mistakes made on the legal documents.
I do not believe you need to do anything about the old will as any new one would override that one.
As others have suggested, I would also recommend seeking advice with a reputable Elder Care attorney. Our parents had a revocable trust done up long ago in FL (they had a second residence - snow geese!) When dad was having issues and nursing home was imminent, we took mom to the EC attorney and had everything drawn up to protect them and their assets (trust for the condo - the FL residence had already been sold), and their assets, as well as medical and financial durable POAs, including medical directives. Later, when dad had passed and mom was showing signs of memory loss, we redid everything, assigning the two local children as POAs and moving all assets to an irrevocable trust (condo and money). We use this trust now to provide the extra needed to pay for her MC residence.
Another nice thing about putting assets (money as well as real estate) into a trust, this does NOT have to go through probate when the principal dies. I keep the minimum needed to cover expenses in her bank account so that we do not have to mess with the courts... at least not much! Once she passes, everything in the trust becomes our property.
Another suggestion is to ensure they have some kind of burial fund. Mom and dad had done that and recent contact with them is that mom's expenses are now pretty much covered - one less hassle and expense to worry about!
Love that you feel that your Will is outdated. Wills are never outdated, ever.

Research the Laws regarding how to change your Will according to the State you currently reside. Personally, I would be very hesitant if my daughter would suggest that she wants the Villa; my opinion only. Generally the discussion with a family member to change your Will could mean that they are wanting something that you feel should be given to someone else, but they are trying to influence your decision regarding YOUR PROPERTY.

The basic rule of thumb is that whomever is the surviving spouse is given everything unless certain items have been requested to be given to someone such as your grandmother's wedding ring.

The surviving spouse now owns all the properties that were common during the marriage. The surviving spouse can now have the Will redone and designate who gets what including children from a previous marriage, who will be the Conservator of the Estate. It is the surviving spouse's free will that comes into play at this point.

Again, Wills are never outdated, but the State Law should be researched. I will give you the example of what I am going through and researching regarding my Mother's Will.

Mom lives in AZ while I live in TX. She had her Will done back in the 1980s when she and dad divorced. She decided that she needed to change things due to issues that happened when my fraternal grandmother died.

AZ Law for Will changes:

The original(s) must be totally destroyed in the presence of a 3rd uninterested party so that the destruction can be proved in Court by swearing an oath

Changes can be done by the person by CROSSING OUT what they want changed i.e. naming someone else as Conservator. My Mother crossed out her brother and placed me as the Conservator

A Codicil aka an amendment. In AZ this can be done by the person or have help writing the codicil to make changes. My Mother asked me to help as she did not trust my siblings with this and knows that I will do what she wants done.

There is certain wording that must be included in the Codicil. The most important is that it be title Codicil #1, #2 etc of my Will dated____ if changes have been done for whatever reason. All codicils must be attached to the Will in the order they were done...very important as a codicil cannot stand on its own without the original Will and any previous Codicils. The Court will throw out the Codicil and refer to the original Will.

In my Mother's case, I typed everything for her while she provided instruction. I did question her about every change she made because I did not want her to feel later on the she made a mistake by not providing more or less for each child etc.

Once done:

The person must sign acknowledging these changes are done per their instruction
Their signature must be witnessed by 2 uninterested parties
All must be dated for the same date of signing
It may be required to have the signing done in front of a Notary, in AZ it does not. I told my Mom it did so there wouldn't be any question about the signatures or the Codicil

I have Mom's original Will(s) and the Codicil attached. My siblings do not and will not know that I have these documents until they need to know.

Reason(s):

Medical POA naming me as the responsible party 'mysteriously' disappeared and during a hospital stay, even though Mom was having memory issues (stated in her medical records at the hospital stay) managed to have Mom re-assign the Medical POA over to my sister/brother....this is fraud in AZ

Mom's Living Will also disappeared, I have a copy of it, but my Uncle/Aunt will need to swear that it is true and what Mom wanted as the 3 of us helped Mom set this up when I helped with the Codicil.

My sister stated to me that SHE was going to have Mom re-do the Will because it is outdated. Some elderly advocate told her that the State of AZ will seize all property and we as Mom's children will not receive anything.

My sister, although very intelligent and very street wise, does not have an inkling as to how a Probate state works. NOT A CLUE. I asked her if this advocate had a Law degree or not because she definitely doesn't understand probate. I had to work with probate all of the time when I was a banker for 30+ yrs. I know how it works and what needs to be done.

Even if she somehow gets Mom to re-do the Will (and I hope she does), because of AZ State Law, the re-do will not stand since I have the original(s) and the required ways accepted by the State were not done for the re-do

My sister lives with Mom and I have already caught my sister in at least 2 areas that are considered fraud in AZ. Once the Will(s) I have are recorded with the Court, I have the right to immediately kick my sister out of Mom's house as it becomes my property. I can also choose to have criminal charges made against my sister and she will be on shaky ground with the possibility of losing everything Mom intended her to receive.

Her problem is that she has seen the original Will(s) and any monies Mom has indicated for my sister; she can't get any of it without my permission and I have strict instruction in the Will as to what the money is to be used for and control any remaining money for her.

You can research all of this on-line. Every State is different. You can contact the appropriate Court to get questions answered too. You don't necessarily need an Attorney involved at this point depending on your State.

Be sure to research Notary Law too. These change and people do not have any idea that Notary is controlled by the State and therefore can be changed by the State government; which is not required to inform the public of the changes (learned that one when my sister committed another fraudulent action).

I hope that this has helped you in some way. You have the resources at your finger tips to get answers before involving attorneys and the money they make by the hour!




I would definitely talk to an elder law or estate specialist about a trust, which can include a will. It may seem like a big deal now, but in the long run a trust can make everything simple, possibly even the Medicaid possibility. My husband and I had a trust made not long before his passing (his brain was still totally OK), and I have not had a problem in dealing with any of the property or estate issues that have arisen, and not having to deal with a probate has been worth it all. I was also the corporate secretary of a non-profit that was named the beneficiary and executor of a trust made by a widower with no heirs, and we were able to deal with everything with no hassle. I really recommend it, and this way everything is organized so there should not be any counterclaims or hassles.
BTW, I recommend that this be done by a well-recommended lawyer who is NOT mass-marketing trusts. Also, do-it-yourself documents can have hidden traps that you are not aware of. I'm relatively knowledgeable legally but wouldn't do this one myself.

Share your answer

Please enter your Answer

Ask a Question

Reach thousands of elder care experts and family caregivers
Get answers in 10 minutes or less
Receive personalized caregiving advice and support