Destroying old will


Gregory S. DuPont, JD, CFP March 28, 2023

For many people, the will is the central document of their estate plan. When accompanied by powers of attorney, advance directives, trusts, and other important documents, a will can protect your family's assets. Yet, according to Gallup, only 46% of US adults have a will. This number has remained consistent in Gallup polls dating back to 1990! If you're among the minority of Americans with this crucial estate planning document, congratulations!

But, simply creating a will doesn't mean that your estate plan is complete or final. Your will may need to be updated many times throughout your life. It may even need to be revoked and redrafted entirely. Usually, revoking a will is a purposeful act on the part of the will maker. But many states have laws that automatically revoke a will, or portions of it, in specific situations. Certain actions by a beneficiary can also revoke that person’s interest in the will.

What is a Last Will and Testament?

A last will and testament provides instructions on how to distribute your probate assets (i.e. your house, car, furniture, etc.) when you pass away. If you have minor children, you will name a guardian for them in your will, along with instructions for their care. A basic will should specify the following:

  • Who receives personal assets (i.e. real estate, bank accounts, investments, business interests, and personal possessions) and in what amount

  • Who the executor will be (the person responsible for making sure the instructions in the will are carried out)

  • Guardian arrangements for minor children

When a person dies, their will goes through a legal process called probate. Usually, these proceedings are held in the county the decedent lived in. If a person dies intestate, meaning without a will, Ohio's default laws will determine how assets are distributed. The court will also determine who the executor(s) and guardian(s) will be. Most people want to make their own decisions known rather than leaving them to the state.

How to Update an Existing Will

A will should be updated as life circumstances change. Many people change their will when they get married or divorced, have a child, buy new property, retire, or move to another state or country. Wills should also be updated if the will maker has a major income change. If family dynamics change, beneficiaries and guardians can be changed in the will. At DuPont and Blumenstiel, we recommend reviewing your estate plan at least once every 5 years. Even if you haven't experienced a major life event, periodic reviews are essential. You'll want to make sure your will still accurately represents your intentions and follows up-to-date laws.

Amendments to a will are made using a legal document called a codicil. Executing a codicil usually requires the presence of two witnesses. However, if lots of updates need to be made, you may want to write a new will all together. According to the American Bar Association, codicils can sometimes lead to confusion and legal challenges if they create ambiguities when read together with the original will.

How to Create a New Will

Our estate planning attorneys at DuPont and Blumenstiel can review your will for you. Based on your goals, we'll make a recommendation to update your will, leave it the same, or create an entirely new one. If you decide to create a new will, it needs to be properly executed under state law. If needed, we'll make sure your will clearly states your desire to revoke all prior wills.

How to Destroy an Old Will

The fastest way to revoke a will is to physically destroy it. Ohio law states that a testor can revoke their will by "tearing, canceling, obliterating, or destroying it with the intention of revoking it". Note that this definition does not include making notes in the margin or placing an “X” through part of a will. Ohio law also allows another person to physically destroy a will on behalf of the will maker. They either have to have written permission from the will maker, or be in the precense of them when the will is destroyed.

If the destruction of a will doesn't comply with the requirements of Ohio law, the court may rule that it was improperly destroyed and treat it as though it is still in effect. Typically, when somebody destroys an old will, they make a new will. But if the old will is not legally revoked, and a new one is created, the existence of multiple wills could lead to litigation.

When a Will is Revoked by Law

State law may provide that a will is revoked, in part or in full, if certain events take place, such as the following:

  • If a person gets divorced or has their marriage annulled, any part of the will that refers to their spouse, or the spouse’s family, is automatically revoked in many states.

  • There is a new will or codicil that includes provisions that contradict provisions in old will or codicil.

  • A beneficiary’s interest is revoked under a “slayer statute” if the beneficiary kills the will maker.

Thinking of Changing Your Will? Talk to an Estate Planning Attorney

Whether you are making minor changes to your will or starting from scratch, we'll help you change your estate plan legally and ethically. The last you want is for a court to not recognize your final wishes because of a careless legal mistake.

To discuss changes to your estate plan, call us at 614-389-9711.