Frequently Asked Questions About Wills
J. Michael Deege
Soon after a will is made, a testator frequently thinks of questions which may not have been discussed previously. This is an attempt to answer the more common of these. The answers are my opinion only. If elaboration is desired, please feel free to consult with one of our attorneys at any time.
Q. Now that I have my will, what should I do with it?
A. A will should be located where it can be found in the event of your death. Several places are considered safe from the standpoint of fire or theft: a safe deposit box in your bank or a home or personal office safe if it is fireproof. Personally, I prefer your own safe deposit box for ultimate security.
Q. How long will my will be valid?
A. Forever, in the sense that it does not expire by lapse of time. Of course, certain of its provisions may lapse or become inoperative by reason of a change in the law or a change of circumstances, such as the death of a named beneficiary. You should always review your will when a death or change of family circumstances occurs.
Q. Should I tell anyone that I have made a will?
A. Generally speaking, it does no harm to state that you have made a will without feeling that every provision in the will need be explained. You may want your main executor or your main beneficiary to know the location of the will so it can be readily located after your death.
Q. What if I want to change my will?
A. If you want to change your will, it will be necessary to rewrite your will or make a codicil (an amendment) to the will. In both cases, the instrument again will have to be executed and witnessed according to strict legal requirements. Do not attempt to change the will by adding, scratching out, or otherwise defacing its pages. Such may cause extreme difficulty or impossibility in being able to probate your estate and passing your property to those you have chosen to receive it.
Q. What happens if I lose my will?
A. The will must be redrawn and executed properly. I keep an electronic copy of your will on my computer so the task should not be difficult. You are always welcome to consult this copy if you do not recall all of your will's provisions and do not wish to disturb the original.
Q. What if the witnesses to my will die, move away, or disappear?
A. It makes no difference, since your will in effect was proved up at the time of execution. That is the reason the notary was present at the time you and the witnesses signed the will.
Q. What if one or more of the beneficiaries named in the will die before I do?
A. The legal effect of such death should be considered by you in relation to your will. If you are uncertain as to the effect of such a death, you should confer with me to determine whether any changes in your will are necessary. The same is true in the event that facts change by reason of marriage, birth, or adoption.
Q. What if the named executor dies, moves away, or becomes incapable of serving?
A. If no alternate who can serve is provided for, your will should be amended. Otherwise you lose some of the benefits of your will since, for instance, the party who does eventually serve may have to put up a bond which could be costly to your estate.
Q. What if the value of my estate decreases or increases or the nature of my assets change?
A. While your will is drawn to try to meet some contingencies (other than a substantial increase or decrease in your assets), occasionally specific bequests may be affected. A periodic review of your will every 3-5 years or especially after major changes in your estate have occurred should solve this problem for you. See Major Events Warranting Will Review or Revision.
Q. What if I move away?
A. If your residence remains in Iowa, the main concern is to determine whether your named executor is still in a physical position to serve your estate easily and economically. The executor usually needs to work very closely with the lawyer, and hence the executor's residence should generally be where the majority of your property is located. If you move out of Iowa, your will would still be valid, but just before or after moving you should discuss this either with me or a lawyer in your new state of residence.
Q. Can my will be contested?
A. Any person who would benefit more by you not having a will does have a right to contest your ability to make a will, or to charge that undue influence was used on you. Such a charge, however, must be based upon facts which must be proven by the contestant. Will contests are very infrequent and usually unsuccessful.
Q. Can I personally change or alter my will without returning to the lawyer?
A. No markings of any kind can be made on a will after it has been signed and witnessed. Such markings are not valid and raise the question of validity of any part of your will. A new or separate instrument is necessary.
© J. Michael Deege 2003