Recently my mothers husband died. She is 91 and wants to change it giving certain items to persons of her choosing. Do we have to have a new will or can she just tell us what she wants done w/certain items in front of a notary and add to present will. She is also thinking of changing executor, will that also take a new will?
She can do a codicil but it must be executed with the same formalities as required for a will. It sounds like things have changed. Your mother might be wise to see an estate planning attorney to make sure everything is done correctly.
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9 lawyers agree
Elder Law Attorney
I strongly suggest that you do not write anything on the original Will! If she wishes to change the executor then she will need to either create a new Will or a Codicil. In either event I would recommend that she use a local estate planning attorney. As to the items of personal property, although not technically proper, if she were to write up a list, sign and date it in front of a couple of non-interested witnesses then that would probably be fine. However, that is assuming that she is just dividing up modestly valued items in the home. If the items have a significant value then the lawyer should include those bequests in the Will itself.
Good Luck. You can find fine estate planning attorneys near your mother on this website or at naela.org.
Legal Disclaimer: Paul A. Smolinski is licensed to practice law in the State of Illinois only, and as such, his answers to AVVO inquiries are based on his understanding of Illinois law only. His answers are for general information about perceived legal issues within this question only and no response to any posted inquiry should be deemed to extend any right of confidentiality between you and Mr. Smolinski, to constitute legal advice, or create an attorney/client or other contractual relationship. An attorney/client relationship is formed only by specific agreement including an evaluation of the specific legal problem and review of all the facts and documents at issue. We try to insure the accuracy of this information, but we cannot guarantee its accuracy. The reader should never assume that this information applies to his or her specific situation or constitutes legal advice. Therefore, please consult competent counsel that practices in the subject area in your jurisdiction and who is familiar with your specific facts and all of the circumstances.
11 lawyers agree
I would suggest that your mother contact an Estate Planning Attorney for help. At the end of the day, the Courts want to make sure that what your mother wants to have happen with her property after she passes is what actually happens. For that to happen in terms of having someone different be the executor and having her property distributed properly, she will need a new will or a change to her old will which is referred to as a codicil.
A codicil may be fine and will get the job done if done correctly, but I generally only use those for small or minor changes. From what your question is implying though, it may just be easier to start from scratch with a new will. Either way, take the safe route and suggest your mother speak to an attorney about having things updated one way or another.
While I appreciate the opportunity to answer your question, my thoughts and impressions of your case may change given more information. Typically, I would give advice following a face-to-face meeting where we could both ask questions of each other about your situation. Therefore, my answer is intended to be general guidance and not legal advise for you to rely on in your particular situation. Moreover, my response to you is not intended to establish an attorney-client relationship. If you would like to hire me as an attorney, you must contact my office and we must enter into an agreement for me to represent you.
10 lawyers agree
Personal Injury Lawyer
Before making any changes make sure she is of sound mind. If she is, she has a choice of using a codicil to add to the old will or creating a new will entirely. I believe it is better to draft a new will entirely. In any event you will need to hire an Estate Planning attorney to help you with this matter.
8 lawyers agree
Estate Planning Attorney
I would have an attorney draft a new will-your best chance of success.
The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.
6 lawyers agree
Given her age and the desire to avoid post death challenges, I recommend you do a new will with all the formalities and witnesses to vouch for Mom's state of mind and basis for desired changes.
My answer is not intended to be giving legal advice and this topic can be a complex area where the advice of a licensed attorney in your State should be obtained. Please click "helpful" or "best answer" if my answer added any value or add a "comment" if you have more info for me to help you get a better answer.
5 lawyers agree
I recommend a new will for both changes. Indiana law now allows a person to prepare a written (or typed) list of certain tangible things that she/he wants to be given to certain persons, so long as they sign and date the list. However, most older wills do not take this new law into consideration. Thus, the new will would include this change of law (only about 4 yrs old), and would also change executor.
In any case, keep in mind that the attorney preparing the new instrument will be representing your MOM, not you. Some people are taken aback at that last statement. The attorney would have to meet with Mom alone, and then prepare the documents that she requests. SHE has the ability to share those documents with anyone she desires; however, the attorney cannot share information with you without her consent (written is preferable). I just want to make certain that you understand this as you move forward.
If I can be of assistance, please call for an appointment. In any event, good luck!
veRONIca jarnagin, atty, pc
veRONIca jarnagin, atty, pc 317-253-7664 provides this response as general guidance and not specific legal advice. If you wish to receive specific legal advice for your situation, please call to schedule an appointment.
2 lawyers agree
Estate Planning Attorney
Your mother can execute a codicil which is an amendment to her will, or she can do a new will. My personal preference as a practitioner is to do a new will. As far as the stuff she wants to give away, she can go ahead and give those things away while she is alive. Alternatively, her new will or codicil can incorporate a writing that directs the disposition of the items to certain people. To change the executor (personal representative is the more modern term) she would need to execute a new will or codicil. If her current will was executed prior to 1991, her new will or codicil should request and authorize unsupervised administration.
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