Question: My Will currently states that my daughter may continue to live in one of my houses until she moves out or dies, at which time the interests in the house would go to my son and grandson.
She is now moving, and I will be selling the house. I want the sales proceeds to go into my estate and be divided evenly between the three of them.
If I write this change on the Will and get it notarized, will it still be legally effective?
Loraine’s Answer: No; Wills cannot be amended that way. In fact, writing on an existing Will is more likely to invalidate it than to result in effectively making an intended change. The only time you should ever write on an existing Will is if you intend to revoke the entire thing, in which case you can write REVOKED across each page.
To change a Will, you must either execute a Codicil or a whole new Will. Either a Codicil or a new Will must be executed in a specific manner in order to be valid and to modify or revoke an existing Will.
A new Will may be preferable to a Codicil for various reasons, including, among other reasons, the fact that it is easier to read and interpret a single document than two documents that must be read together and the fact that a Codicil may end up overlooked if it is not kept with the original Will and not found before the original Will is offered for probate.
Whether you decide to use a Codicil or execute a whole new Will, however, it is critical to comply with the requirements that Georgia law imposes in order for a Will or a Codicil to be executed correctly. An incorrectly executed Will or Codicil may not be valid, which would mean it has no effect. In order to properly execute a Georgia Will or Codicil, the person signing the Will or Codicil (called the “testator”) must either: sign it in front of two parties who are not related to the testator and have no interest or stake in the testator’s estate or show the signed document to those two parties and acknowledge to them that the signature on the document belongs to the testator and that the testator intends that document to be the testator’s Will or Codicil. Once the document has been properly signed or acknowledged by the testator, the witnesses must also sign the Will or Codicil, preferably below the testator’s signature. The witnesses must sign the Will or Codicil “in the presence” of the testator, which is generally interpreted as meaning, at a minimum, that the testator must be able to see the witnesses actually signing the document. The witnesses also have to be in the presence of each other while signing. Finally, in order to make offering the Will or Codicil for probate easier when the time comes, it is best to include a self-proving affidavit with it. A Georgia self-proving affidavit must be signed by testator and the two witnesses to the Will or Codicil, all in front of a notary. The notary must then sign and notarize the affidavit.
Key Estate Planning Takeaway: Do not write on an existing Will unless you intend to revoke it. If you only want to make changes to your existing Will, you should contact an experienced estate planning attorney to help you prepare and execute the appropriate documents.
This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.