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Follow Procedures When Redoing Your Will

The problem: The will my husband and I drew up names our son as executor. Due to family circumstances, we would now like my husband’s brother to act as executor, not our son. Do we need to redo our will, or can we just sign an addendum with this change and have it notarized?

The expert: Frank L. Buquicchio, elder law and estate planning attorney, Vincent J. Russo & Associates.

The rules: Anyone 18 or older who is of sound mind and memory can legally make a will. It can be revoked or changed at any time during your lifetime, provided you are still mentally sound. An addendum or amendment to a will, called a codicil, must be signed with the same formalities as a will: In the presence of two competent adult witnesses who are not potential beneficiaries. There is no notary requirement for a will or a codicil.

The strategy: Sign a new will that reflects your wishes about your executor.

How it works: When a will is offered for probate, there are specific procedures that must be followed in order to satisfy the Surrogate’s Court that the will is valid, was properly executed, and that all interested parties have been notified. If you add a codicil, the same procedures must be followed, creating additional time and expense during the probate process. With today’s computer technology, it is easier and more practical to sign a new will than to do a codicil.

It’s a good idea, when you sign your new will, to have the witnesses also sign an affidavit attesting that you are competent to make a will. This affidavit must be notarized and should be attached to the will. Keep both documents in a safe place and make sure your family members know where it is and how they can access it.

The results: Preparing a new will, rather than an addendum, will avoid potential conflicts and will save your heirs on probate costs.