Does a New Will Override an Old Will?

does a new will override an old will

We have all heard stories about long-lost wills being discovered that completely upend what the family thought were the deceased’s true final wishes. Or bitter legal battles between potential heirs arguing over which tattered old document should be considered valid.

It raises the question – if you have created multiple wills over the years, which one actually takes precedence when you pass away? Does simply making a new will automatically cancel out or override any previous wills you had in place? Or is there more to it than that?

Properly protecting your intended legacy requires understanding the technical legal rules and potential pitfalls around how new and old wills interact.

What Happens When You Create a New Will?

Generally speaking, creating a valid new will revokes and supersedes any previous testamentary documents you had in place. Typically the beginning of the document has a provision renouncing all previously Wills.

The courts consider your most recent will to reflect your true intentions for how you want your estate distributed.

In New Jersey, this means the will must be:

  • In writing
  • Signed by the testator (the person making the will)
  • Signed by two witnesses who saw the testator sign the will

If your new will meets these requirements, it will override any older testamentary document once an interested party submits it to probate after your death.

Revoking an Old Will When Making a New One

There are a couple of necessary steps you should take to make it abundantly clear that you intend for your new will to revoke any previous wills:

Express Language

As previously indicated it includes a revocation clause in your new will that explicitly states the new document revokes all prior wills and codicils. You should clearly express this intent in your new document.

Discard Previous Wills

Physically destroy your old testamentary documents along with any copies. Tear them up, burn them, or otherwise destroy the documents to avoid confusion later. This pertains to all originals and copies.

Seek Legal Help

Have your estate planning attorney draft your new will and supervise the witnessing and execution process for state law compliance.

These steps ensure certainty over which testamentary document represents your true final wishes.

And even if someone finds a copy of an old will later, the revocation clause and proper execution of the new one should clarify that it takes precedence.

Do I Need a Lawyer to Draft a New Will?

Legally speaking, you are not required to hire an attorney to write a new will in New Jersey.

However, working with an experienced estate planning lawyer provides many important benefits.

  • Help you draft and execute your testamentary documents correctly according to NJ state law.
  • Update other key estate planning documents like financial and medical powers of attorney.
  • Discover different estate planning options and contingencies.
  • Get guidance on how to avoid common pitfalls and challenges during probate.
  • Achieve greater peace of mind knowing that your affairs are in order.
  • Avoid potential issues that may require a will to be probated through the Court system.

An estate planning lawyer well-versed in the New Jersey Probate Code can ensure your new will is valid, legally binding, and less likely to face challenges after you pass away.

When your loved ones are grieving, that reassurance becomes invaluable.

Dangers of an Outdated Will

While having an old will is usually better than having no will at all, failing to update your testamentary documents properly can have the following serious, negative consequences for your family and beneficiaries.

  • Probate courts may not honor true final wishes.
  • Executors could distribute your remaining assets to unintended individuals.
  • Heirs may end up paying more in taxes than necessary.
  • Family disputes and costly will challenges may arise.
  • The probate process can drag on much longer than needed.

Your will is one of the most important legal documents you will ever create. Ensuring it remains current and clearly reflects your desires is essential to responsible estate planning.

When to Update Your Will

Life circumstances change over time, so it is wise to periodically review your testamentary documents to ensure they still reflect your current wishes.

The Three-Year Rule

Our estate planning lawyers generally recommend revisiting your will every 3-5 years or after any major life events like:

  • Getting married or divorced
  • Having a child or grandchild
  • Experiencing a significant change in assets
  • Moving to a new state
  • Losing a spouse or child
  • Having a falling out with an heir

Keeping your will up to date also prevents accidental disinheritance. For example, if you draft your will while single and later marry, may not have provided for your new spouse unless you update your estate plan.

What If Your Old and New Wills Have Conflicting Terms?

Sometimes, people may draft a new will that contradicts provisions in their old will without expressly revoking the prior terms.

This situation often happens when someone tries to update their will on their own without working with an estate planning attorney. If your old and new wills have competing or conflicting provisions, it usually leads to confusion over your final wishes and expense probate litigation. Disputes often arise between heirs over which document controls their legacies.

To minimize the risk of a will challenge or other probate dispute, you should always:

  • Include revocation clauses in any prior wills or codicils in your new will.
  • Destroy any copies of prior wills in your possession.
  • Work with an estate attorney to ensure proper drafting and execution.

If a conflict does arise between an old and new will, the probate court will look at the specific language of each document, the dates of execution, and other evidence to discover your intent.

Generally, the terms in a new testamentary document override provisions in an older one.

Get Peace of Mind with Proper Planning

In most cases, executing a properly drafted new will does override any previous wills you had in place. As long as the new will was created with sound mind and followed all legal formalities, it becomes your official final testament when you pass away.

However, that does not mean old wills can not potentially cause issues or be grounds for disgruntled parties to try to contest your true intentions. Disinherited heirs or questionable circumstances can open the door for challenges over which document should be deemed valid.

That is why it is critical to work with an experienced wills lawyer when drafting a new will, even if you think your wishes are straightforward. Our team knows how to ensure your new will is air-tight and clearly revokes and overrides any prior wills according to the letter of the law in your state.

More importantly, we provide guidance on structuring your full estate plan in a way that deters disputes. Do not leave it to chance – bring in our professionals to solidify your legacy today.

Author Bio

michael s. simone, esq.

Michael Simone is the Founder and Managing Partner of the Simone Law Firm, an estate planning law firm in Cinnaminson, NJ. With more than 20 years of experience in criminal defense, he has represented clients in a wide range of legal matters, including estate planning, elder law, probate, real estate, and business law.

Michael received his Juris Doctor from the Rutgers University School of Law and is a member of the New Jersey Bar Association.

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