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As circumstances change, ‘Last Will and Testament’ may not be final word on an estate

“Last Will and Testament” is a popular title for the document in which a person, known as a testator, names one or more people to manage his or her estate and provides for the distribution of his or her property after death. But when a person’s life circumstances change, a “Last Will and Testament” may turn out not to be the last word on an estate after all — in which case, the living testator can and should amend the will.

Marriage, divorce, the birth of children, disputes with family members and support for a charitable cause can all prompt changes to a will. Major, life-changing events should be reflected in a person’s will as long as the testator is mentally competent.

Traditionally, a codicil, which is a document that is added to an existing, signed will, has been the means for amending a will, but there are arguments against their use in 2015. 

A codicil, like a will, must be signed by the testator and signed and witnessed by two other competent individuals. With the development of modern word-processing equipment, it has become just as easy to write a new will instead of adding a codicil.

A codicil can also introduce problematic conflicts between documents. Is the codicil just an addition to the original document, or does it negate something within it? Or, if it is supposed to represent a substitution for something in the will, exactly which part of the document is it replacing?

In Virginia, any mentally competent person who is at least 18 years old may write a will. Signing a will in the commonwealth requires two competent witnesses, though witnesses are not required if the testator handwrites, signs and dates the will on his or her own.

While the law does not require that a will be notarized, most attorneys recommend it. If the will includes a notarized “Self-Proving Affidavit,” courts will presume that the document was properly executed and will accept it without testimony from witnesses.

Whether a person wishes to create a new will or amend an old one, an attorney experienced in estate planning law can help him or her draft the will and store it for the future.

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