Should we update our Wills and Powers of Attorney?

Asked almost 3 years ago - Medford, OR

My husband and I drew up our Wills in 1996 and our General Durable Powers of Attorney in 2000. We don’t want to make any changes to them, so we don’t want the expense of drawing up new documents. We’re wondering if any laws have changed since then that would invalidate them, or if documents this old would raise questions when the time comes that we need to use them. Would it be a good idea to write on these documents, “Reviewed. No changes,” and then sign and date them in front of a notary? If yes, should we again initial each page?

Attorney answers (3)

  1. Joanne Reisman

    Contributor Level 16

    7

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    Answered . First of all - never write on your original will! Any writing on it, taking it apart and putting it back together, etc can be misinterpreted as someone tampering with your will or as you attempting to invalidate the will by destroying it. If the will is OK then you should not do anything with it.

    That having been said, it is always a good idea to see an attorney to review your estate plan even if the will doesn't need to be updated. This is because tax laws change, property values change and not everything passes by via your will. I recommend that my clients come in for a review every 5 years.

    As for the power of attorney, while the form you did in 2000 is technically still valid, we find the financial institutions are uncomfortable with powers of attorney that don't have recent dates. It is a good idea to just re-execute the documents periodically. This can be done in your 5 year visit or more frequently.

    Another consideration is that your current plan may no longer work for you. With an increase in assets and cash flow as you move closer to retirement, it may make a lot more sense to invest in a living trust because that is really the best device to deal with asset management for people as they age. People in our society are living longer but not necessarily with their full mental capacity or optimal health for our new extended life expectancy. Without a living trust your loved ones most likely will have to seek an expensive court conservatorship and this can be much more restrictive then you would like in terms of the court substituting their judgment for how the money can be spent at every turn. The durable power of attorney is not a good substitute for a living trust. It's sort of like a band aid when you really need a tourniquet because in practice many financial institutions won't honor the durable power of attorney due to their fear or forgery or fraud.

    There have been changes in the estate tax situation. While federal estate tax has gone up such that you don't have to pay taxes until your estate value exceeds 5 million, this has unfortunately meant that more Oregonians are going to pay Oregon estate tax which still kicks in when your estate passes the 1 million mark, a number that most Oregonians didn't reach 10 years ago, but now is within reach of more and more Oregonians due to the appreciated value of our homes, plus the value of life insurance, plus the appreciated balance of retirement and investment accounts. This happens when the second spouse dies as the transfer from the first spouse to the second can pass tax free.

    There is a relatively inexpensive fix that can save borderline estates from paying any estate tax, but it has to be put into place before the first spouse dies. This device is called a disclaimer trust. It is language in the will that allows the surviving spouse to do some last minute tax planning when the first spouse dies. If there could be an estate tax issue the surviving spouse simply disclaims some property shortly after the first spouse dies by filing a form with the IRS. The beauty of this simple trust procedure is that it keeps the money where the surviving spouse can still use it to live on, but magically includes it in the first spouses estate for tax purposes, reducing the total taxable estate of the surviving spouse when they die.

    The final consideration is do you really understand what your will does and doesn't do? This is confusing for many people. People over time fill out forms for bank accounts, retirement accounts, investment accounts where they designate beneficiary. The will does not change these designations and fix problems. It is important to review all this with an attorney to make sure what you think you have set up will actually work the way you planned.

    The cost of going to see an attorney is relatively small compared to the cost of fixing the problems that would have otherwise been easily prevented.

    The comments by this author to questions posted on Avvo are designed to foster a general understanding of what... more
  2. James Oberholtzer

    Pro

    Contributor Level 14

    1

    Lawyer agrees

    Answered . There have been many important changes to Oregon laws concerning Wills (and trusts, if your Wills created or reference trusts) since 1996. Many of the changes relate to estates greater than $1 million. If your estates are less than $1 million then you probably do not have Oregon tax problems. However, there are plenty of changes to non-taxable estates as well.
    There is not an effective way to give you a summary of all the changes and how they might effect all possible estates. The bar prepares such a summary every year of the legislative changes (not counting the court decisions) and these are by necessity only an index of the changes. an effort is made not to make changes that would invalidate the Wills of the elderly or disabled who can no longer change their Wills; however, this can occur.
    To answer your second question directly, no, there is implication that your Wills are not valid simply because they were created a long time ago. What usually is an issue is that the plan expressed in your Wills no longer suits the beneficiaries. They have changed while your Will has stayed the same.
    Your estate plan needs to reflect the needs of the people in your family and the others you wish to benefit. Usually we suggest a review of the estate plan every 5 years. During 5 years, most testators and beneficiaries have some important changes in their personal or financial lives. You may not be aware of how these changes affect your estate plan. However, an estate planning attorney will. I suggest you go back to the person who helped you create these documents for a a review, if possible. He or she would be able to do this more efficiently than a new attorney.

    If you think this post was helpful, please check the thumbs up (helpful) tab below. Thank you! hope this helps.... more
  3. Sherrille Diane Akin

    Contributor Level 13

    2

    Lawyers agree

    Answered . I will let one of the fine attorneys from Oregon who regularly comments on this site to address changes in Oregon probate and estate planning law since 1996, but I do want to comment and encourage you NOT to write at all on your original Will document. You could accidently invalidate the document or create questions regarding its validity if you do. It isn't possible to say whether any law change since you signed your documents affect your situation since I don't know what your situation is and a detailed discussion of those facts is inappropriate for a forum such as this. A better idea would be to find an estate planning attorney in your area to review your documents, either with or without charge, and meet with you to discuss your current situation. If, following that review, it is decided that new documents are not required, the attorney can send you a short letter to that effect, which you can retain with your original documents. The passage of time by itself should not raise any questions regarding the validity of the documents. Best wishes to you both.

    This response contemplates only the laws of Ohio and is not intended to apply to other jurisdictions. None of the... more

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