Can a Will Be Changed after Death?
Most people use a will to determine who will inherit their estate after death. Once a person dies, it is impossible for them to change their will. In this sense, a will cannot be changed after death.
However, a judge might not enforce a will as written, for a variety of reasons. In the most obvious example, a will is invalid, in which case a judge won’t accept it for probate, and the estate will probably pass according to South Carolina intestacy law. That doesn’t “change” the will, but the court departs from the terms. In this article, we look at situations where it’s common to depart from the terms of the will and answer the question can a will be changed after death.
Can a Will Be Changed After Death?
A disappointed heir might challenge a will as invalid, typically for one of the following reasons:
· Lack of testamentary capacity. A person must have the capacity to make a valid will. Essentially, this means they must be of sound mind and know what they are doing. A person with advanced dementia would lack capacity, as would someone in a coma. Sometimes, the evidence is close—an old and sick person might be very frail but still have capacity. Ultimately, a judge will decide if the testator lacked capacity based on all available evidence, including medical testimony.
· Fraud. Any will obtained by fraud is invalid. For example, a child might tell her mother to sign a document to apply for Social Security. The document is really a will. This is fraudulent behavior, so the will is invalid.
· Coercion or undue influence. The testator must freely sign the will for a probate judge to accept it. Any coercion, threats, or force will make the will invalid. An elderly person might be threatened by a caretaker, which is a common example.
· Failure to follow the formalities. All wills in South Carolina must satisfy certain formalities, such as being in writing and signed by the testator or by someone else at the testator’s direction, along with two witness signatures. A will that doesn’t tick off all the boxes could be invalid.
The probate judge will hold a hearing and decide at the end whether to admit the will. If not, then the estate might pass according to a previous will or the state’s intestacy laws.
In South Carolina, divorce revokes any bequest to a spouse and any designation that a spouse acts as the estate’s personal representative. Divorce does not revoke the entire will, however—only the language related to the divorced spouse.
Many people draft a new will after a divorce. That makes sense, since you get to decide who will inherit these assets and who can serve as your representative. But some people forget to revise their will, so the probate court simply doesn’t apply the language related to your ex. This is an example of how the will gets “changed” after death by operation of law.
Pretermitted Children (Children Omitted in a Will)
Some people draft a will and then have a child or adopt one after. The child is left out of the will entirely, whereas other children might be provided for. One option would be to tell the omitted child, “Too bad.”
However, South Carolina Code § 62-2-302 adopts a different approach. It says the omitted child will inherit a share of the estate that’s equal to what the child would get under the intestacy statute. So if a man had three children and no surviving spouse, then each of his children would get one third of the estate if there was no will. The omitted child would therefore inherit one third.
There are exceptions as spelled out in the statute. For example, the omission might have been intentional, or the testator left everything to their surviving spouse. In these cases, the omitted child will not get a share. Another exception is if the testator intends to provide for the child by making transfers outside a will, such as in a trust.
Refusal to Serve as Personal Representative
A testator can name someone to serve in this capacity. But the person might decline to serve for a variety of reasons. In other situations, the representative has died before the testator or cannot fulfill the function due to disability or incapacity. In these cases, the probate court needs to appoint someone else to serve, so this is an example of departing from the terms of the will.
Some beneficiaries die before the person who created the will. A question arises as to who will inherit any bequest made to them. For example, a woman might leave her quilt collection to her sister, but the sister dies before her. In that case, a well-drafted will should identify an alternate beneficiary who will inherit the asset should the primary beneficiary predecease the testator.
Unfortunately, some wills are missing an alternate or substitute. In that case, the gift actually goes to whoever is the named beneficiary of the residuary estate. The residuary is basically what’s left over after you remove all the specific bequests.
Some wills contain errors. Minor mistakes about the identity of property can be corrected by the probate court, but fundamental errors probably won’t be.
For example, a testator might get the address of real property slightly wrong. That could be a typing mistake made by a lawyer. But if the will lists several properties the testator didn’t own, then the will looks fundamentally flawed. In fact, large errors raise questions about capacity or coercion.
Call Our Law Office with Questions
Most probated wills are followed very closely. Probate judges do not get creative and try to alter the scheme laid out in the will. But as explained above, there are some exceptions. Surasky Law Firm has worked with many disappointed family members to review a will and whether they can challenge it.