Q. My wife and I have three children ages 2,3 and 5. We have a will which we paid an attorney to complete when our 5-year-old was born. I guess it is what is called a sweetheart will since everything is left to the other spouse upon the first death and gets a bit more complicated should we both die. We named guardians in the event we should both die while the children are young . Unfortunately, the couple we named at that time are no longer married and even if they were they are no longer the people we’d like to raise our children. We really don’t want to spend the money for a new will and can see this same issue and other potential changes arising in the future. In this instance, can we just mark out their names in the will and replace them with the people we now want and then initial our changes?
A. I do not practice law and can’t provide legal advice but I can provide some ideas you may want to run by an attorney to make sure they are appropriate for your situation. It’s not unusual to want to change a will. If it is a simple change, deletion or addition you can make an amendment to the will with what is known as a codicil. If you are making any major changes or are uncomfortable with making a codicil, you should destroy the original will and make a new will. To make changes to a will legal you need to follow certain rules and meet the same legal requirements as your will, you can’t just write over what’s in your will and initial the change. Each of you will need your own codicil to your will.
You will need to title the codicil and reference your will in the codicil. Something like, “This is the first codicil of the Last will and Testament of John Smith.” You will then want to state your name and address and that you are of sound mind to declare that this codicil is effective on this date XX/XX/XXXX and shall hereby amend my Last will and Testament dated XX/XX/XXXX as follows. Always include the full name of the testator (you) as referenced in your will and the date of the original will you are amending; you must make it clear that you are aware of the original will.
Identify the article number in the original will that you are amending and state in detail what changes are desired. With a change of guardian you would appoint and name the new guardian(s) and revoke the previous guardianship appointments. Acknowledge that the codicil will overrule anything in your original will that contradicts the original will. Reaffirm that in all other respects the will stands.
The signing of the codicil must be witnessed. Most states require two witnesses but some require three. Even in states where two are required some professionals suggest having three, in the event one witness should be declared invalid. All witnesses must see you sign the codicil and they need to see each other sign and date as witnesses. Sign each page in front of the witnesses in addition to signing and dating the end of the codicil. If all of you use the same pen this can help reinforce that you were together at the same time.
Just to restate: I am not a practicing attorney, you should seek legal advice.
Holly Nicholson is a certified financial planner in Raleigh. She cannot answer every question. Reach her at askholly.com or P.O. Box 97128, Raleigh, NC 27624