The Only Constant in Life is Change
By Bernard A. Krooks, Certified Elder Law Attorney
We all know that things can, and do, change; even (or perhaps, especially) when it comes to estate planning. That’s why it makes sense to review your estate plan every couple of years or, more often, if there is a life-changing event such as the birth of a child or grandchild, change in a relationship with someone mentioned in your will, or a change in financial circumstances for you, among many other reasons.
Surprisingly, many clients are not even aware that their estate plan could be changed. While there may be some things that you have done in your estate planning that are irrevocable, that’s probably not the case for most items in your estate plan.
For most documents in your estate plan, changes can be made so long as you have the capacity to do so. Keep in mind that the legal capacity to execute or change a Will is different than, for example, that needed to change a trust or a power of attorney.
In your Will, you nominate an executor to marshal your assets, pay your debts and expenses of your estate administration, and distribute your assets after your death to whomever you have mentioned in your Will. An amendment to a Will is called a Codicil. These days, we don’t often do Codicils since it is so easy to change documents using digital files and it is usually much easier to draft a new Will instead of doing a Codicil.
Moreover, Codicils have the same exaction requirements as a Will and having one document, instead of two, makes it easier to keep track of it and store. To make or change a Will you need to have “testamentary capacity,” which has been described as the lowest form of capacity to execute any legal document in New York.
Basically, that means you must have the ability to know:
1) what you own – the nature/extent of your assets and what they are,
2) the natural objects of your bounty – your loved ones and who they are, and
3) how you plan to dispose of your assets – that your estate planning documents determine who gets (or doesn’t get) your assets.
In addition to a Will, many clients also have a trust which could be revocable or irrevocable. Use of revocable trusts are becoming more common in New York since it provides for a successor trustee who could manage your financial affairs if you become sick or incapacitated and the assets contained in the trust will not be subject to the probate process upon your death. You can always make changes to your revocable trust provided you have the legal capacity to do so. However, the capacity required to execute or make changes to a trust are similar to the capacity needed to enter into a binding contract. This level of capacity is higher than that required to execute or change a Will.
Conversely, if your trust is an irrevocable trust, which might be appropriate if your purpose in creating the trust was to save taxes or protect assets from a nursing home or the costs of long-term care, then, the trust cannot be changed unless there are specific provisions in the trust authorizing certain actions by you or someone else. Some irrevocable trusts may give you the right to change trustees or the power to change the ultimate disposition of the trust property, among other things. It really depends upon the terms of the trust document itself.
Also, keep in mind that if you become incapacitated, your agent under a power of attorney may be able to make certain changes to your estate plan, depending on the powers granted to the agent in the power of attorney. However, the agent will not be able to change your Will.
One final note; making changes to legal documents is not as simple as crossing out a name and inserting another name. Best to work with a qualified estate planning attorney to make sure it is done right.
Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). (914-684-2100) www.elderlawnewyork.com.