Last minute changes to a will, codicil or an estate plan may be more common than you might think. Estate planning is not something that is always at the top of mind for most people. In fact, most people procrastinate and do not plan for un untimely death. It’s not really something that people want to discuss either. Others may have planned their estate, but may have grown estranged from family or other named beneficiaries may have passed away and now changes need to be made that were not contemplated before ending up in a hospital bed. With that said there are a few things to consider when making last minute changes to a will or estate planning document on the eve of somebody passing away. Attorney Richard Symmes discussed last minute changes to a will and possible consequences and things to look out for on 1150am KKNW radio and you can listen to that show here:
Was the Law Followed to make Last Minute Changes to a Will?
If last minute changes to a will are going to be made, you should make sure RCW 11.12.020 is followed which states that changes should be made in writing and signed by the testator with 2 competent witnesses who will subscribe their name to the will or codicil. Getting the document notarized is also a good idea.
Do you Expect any Challenges to the Will Changes from any Potential Beneficiaries?
When changes are being discussed with testator you may want to discuss the potential of a friend or family member being hurt, vengeful or greedy in their pursuit in what they perceive as their inheritance that they were expecting. If somebody passes away with assets of over $100,000 then their estate in Washington must go through probate. Probate is the process of paying creditors and distributing assets to beneficiaries to settle an estate. If there is litigation involved and fighting over assets the probate process can be very expensive on all sides to pay attorneys to make legal arguments as to why an asset should be bequeathed to one party or another.
As an example, let’s say a daughter was dis-inherited by amendments made to her mothers will at her request at the last moments before she passed away. The daughter was no aware of these changes or the condition of her mother as they had been estranged. The daughter may be notified of her mothers passing by her mother’s personal representative in a probate case and although she didn’t have a good relationship with her mother, she expected to receive something from her mother estate. The daughter in this case could begin to investigate and determine if the changes to her mother’s estate could be challenged based on the circumstances.
Whether somebody challenges an estate or not will likely depend on the circumstances of the relationship between the parties, the condition of the testator when the changes were made, and who was benefiting instead of the party cut out of the will.
Are Possible Beneficiaries Cut out of a Will and Replaced by Somebody with Undue Influence?
One of the first things a challenger to last minute changes to a will or estate plan will be looking for is to see who is the one benefiting from the changes to the estate plan instead of them. Often times, elderly folks who pass away are being cared for by a single family member, friend or care giver and will want to amend an estate plan to provide for that person instead of other family members or those who thought they were going to receive an inheritance. If this beneficiary is seen to have an undue influence or control over this person that is perceived as the reason somebody modified an estate plan a court may side with the party that is challenging the estate distributions and will.
Is the Testator of Sound Mind?
One of the most important elements to making changes to a will at the last minute is to make sure the testator is of sound mind. If somebody is in the hospital or under medical care they could be on medications or in pain or simply not be of a sound mind. If somebody is unable to make decisions for themselves with regards to their estate and financial affairs then they may be unable to modify their estate documents. With that said it is advisable to get a letter or documentation from the physician or staff who is caring for the testator to testify that the testator is of sound mind as she is making the changes to their estate plan.