How to Tell If a Will Was Revoked or Replaced

When you search for a deceased person's will, you might come across a very old document. It's not uncommon for someone to make a will, tuck it into a drawer, and leave it for years or decades. If you find such a seemingly outdated document, how do you know if it's still valid?

Wills Don't Expire

There's no expiration date on a will. If a will was validly executed 40 years ago, it's still valid. But it's unlikely to have improved with age. An extremely old will is probably completely out of date—by the time of death, the person who wrote it could have a different house, different bank accounts, and maybe even a different spouse and new children. But the document is still in force unless it's been revoked or replaced.

Even though the will is still valid, certain parts might not take effect. For example, if the will-maker got divorced after making the will, most states will cancel gifts to the ex-spouse. Similarly, some provisions might have different outcomes than if the will-maker had died closer to the time of making the will. For example, suppose the will makes a gift to "my children" without naming specific children. In that case, any children alive when the will-maker died are usually included as recipients of the gift, even if the children hadn't been born at the time the will was made.

Was the Will Revoked?

To revoke a will, the person who wrote it must:

• physically destroy the will
• clearly state, in another document (such as a new will), that the old will has been revoked, or
• create a new will that's inconsistent with the old will (for example, by making the same gift to a different person); in this case, the conflicting portion of the old will is revoked.

What If the Will Is Gone or Marked Up?

The best way to revoke a will is to make a new will that states you're revoking the old one. But technically, it's also possible to revoke a will by tearing it up or throwing it into a roaring blaze in the fireplace. (However, this method is not advised since it can easily create confusion.)

If you come across a will that's been marked up—for example, lines drawn across the text with "revoked" or similar words written on it, it'd be tempting to assume the will is void. And that might be the case, but it also might not be.

The will-maker is the only person who can revoke the will. Is there any doubt about who did the crossing out? If surviving family members disagree about who marked up the will, you might need witnesses to testify about what happened or even get a handwriting expert to weigh in.

What If You Can Only Find a Copy of the Will?

Probate courts generally don't accept copies of a will; they insist on the signed original. If you think the deceased person signed a will, but you can't find the original, most courts will presume that the will-maker intentionally destroyed the will.

The existence of a copy doesn't change that because even someone who tore up a will might not have gotten around to finding and destroying all the copies. After all, it's common for people to give copies of their wills to close relatives or the person named in the will as executor.

Despite the presumption that an original will was intentionally destroyed if it can't be found, you can try to convince a court to admit a copy of the will to probate. But you will need evidence. In an extreme example, if you can prove that a disgruntled relative tore up a will that cut him out, you could probably get a copy of the will admitted to probate.

To prove that the copy you're showing the court is a valid copy of the deceased person's final will, you'll likely need to bring in witnesses to show that:

• the original will was validly made
• the copy is a true copy (with the same contents as the original will), and
• the will-maker didn't destroy or revoke the will before dying.

Is There a Newer Will?

Most people revoke one will by making another, which replaces the old one. That's why most wills begin with a sentence like "I hereby revoke all previous wills and codicils." (A "codicil" is an addition to a will; they aren't very common these days.)

If you find multiple wills containing language like this, then the newest will is presumed to be the one in force—assuming there are no other problems with the will's validity.

When There's No Valid Will

Without a will, it's impossible to know exactly how someone would've wanted you to handle their final affairs. When someone dies without leaving a valid will, state laws called "intestacy laws" will determine who will:

• oversee the deceased person's estate (including paying debts and distributing assets), and
• inherit the deceased person's property.

Fortunately, most people can create a simple will themselves. And there are powerful tools like Nolo's Willmaker that make creating and updating your will and other estate planning documents a simple process.