ESTATE PLANNING: The proper way to amend a will

2013-08-24T15:33:00Z ESTATE PLANNING: The proper way to amend a willChristopher W. Yugo Times Business Columnist nwitimes.com
August 24, 2013 3:33 pm  • 

Q: My mother has made changes to her will by writing on it and crossing things out. I told her that this will cause problems, but she refuses to pay an attorney to do it right. Will writing on the will invalidate it?

A: It probably won't invalidate the will, but it's unlikely to accomplish what she has in mind. The proper way to amend is a will is to execute a codicil. Once executed properly, a codicil will make legally binding and enforceable changes to an existing will.

Although a codicil is one method, I prefer to simply execute a new will. Wills and codicils sometimes get separated. A new will codifies the changes in one document. Also, I think you will find that the cost of preparation of a new simple will is comparable to the cost of a codicil.

In all likelihood, your mother's changes are going to be ignored by the court as ineffectual. If the changes weren't executed correctly and witnessed properly, they aren't likely going to be honored. Tell her to call her attorney.

Q: If you want someone to be able to access your bank account, is it better to add their name to the account or to give them a power of attorney?

A: There is a huge difference between adding some as a joint owner on an account and using a power of attorney (POA) to give them the ability to conduct business on your behalf. When you make someone a joint owner on the account, you grant them an ownership interest in the funds and they get all the incidents of ownership that come with it.

For example, they can treat the money as their own and spend it or it could be potentially become available to their creditors. Also, upon the your death, the account will belong to the surviving joint owner rather than transfer according to your testamentary instructions. This may or may not be your intention.

On the other hand, if your use a power of attorney and simply give them the ability to sign your name, there are no incidents of ownership. The person can simply conduct business on your behalf.

In most cases, I prefer to use a power of attorney to allow someone access to a bank account. You can still use a payable on death (POD) designation if you want that person to receive the account after your death.

Obviously each case is different but I've found that using a POA and a POD designation together can serve both the current and post mortem needs without creating any unnecessary ownership interests.

Thanks for the questions.

Opinions are solely the writer's. Christopher W. Yugo is a Crown Point attorney. Address questions to Yugo in care of The Times, 601 W. 45th Ave., Munster, IN, 46321 or to chrisyugolaw@gmail.com. Yugo's information is meant to be general in nature. Specific legal, tax, or insurance questions should be referred to your attorney, accountant or estate-planning specialist.

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