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Tuesday, May 4, 2010

My Will is 25 years old. Is it still ok?

Those of you who have come to hear me speak at various venues know that a lot of the questions I raise on this blog are questions I've been asked at seminars. This is another one of those questions I've been asked recently, but it's also something I've been asked frequently over the years.

If your Will is 25 years old, is it still ok?

The answer depends on what you mean by "ok". If you are asking whether it's still valid, then yes, it's ok. Wills don't expire. Assuming that it was signed and witnessed properly in the first place, then it's still valid now.

If, on the other hand, you're asking whether the contents of the Will are still appropriate for your present circumstances, that's another matter. Here are some of the issues with older Wills:

- The law is constantly evolving. The government makes new laws (particularly tax laws) that may make your old estate plan less effective. Another law that's changed is the one that allows the Affidavit of a Witness to be made at the same time as the Will. 25 years ago, you couldn't attach that until the testator had died. This means you now have to look for one of the two people who witnessed your Will 25 years ago and hope that he or she still has mental capacity to sign the Affidavit. A new Will would bring your ideas and plans up to date.

- Lawyers learn from ongoing court cases about what to put into Wills and to leave out of Wills. This is especially true for the "powers" that are included in Wills to allow executors and trustees to carry out their instructions in the Will. There has been a lot of litigation over the last 25 years, and present-day lawyers know how to comply with those cases to help bulletproof your Will.

- As your documents were prepared before we were legally able to make Enduring Powers of Attorney and Personal Directives, you may not have had the chance to have those documents prepared. They are essential.

- Your circumstances may have changed. Most likely, in the last 25 years there has been at least one significant change in your personal and/or financial life. For example, you may have retired, gotten divorced, seen your children move away, had grandchildren, been widowed or sold your business. No doubt your financial status is different than it was back then.

It's a good idea to have a Will of this vintage reviewed by an experienced Wills and Estates lawyer. Wouldn't you rather find out now that your documents are deficient than to pass away and leave the problems for your spouse or kids to fix? Not every review results in a new Will being made, but the chances are very good that a Will that is 25 years old will need to be brought up to date.

Oh and by the way, even though your lawyer charged you $25 back then to make your Will, he or she isn't going to charge that price these days!

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