Understanding Will Revocation Before Probate

Life can change unexpectedly. Sometimes, a Will written years before no longer reflects one’s wishes. Here’s a summary of when and how to revoke a Will when the documents and your family’s needs don’t match.

Options to Revoke a Will

Writing a Will is an important first step in most estate plans. It communicates your wishes to your loved ones, the personal representative of the estate, and the Florida probate court. But when life changes, or your estate plans change, you may need help revoking a Will that no longer suits your needs.

Revoke a Will by Writing

One of the easiest ways to revoke a Will in Florida is to simply replace it. If you want to change your existing estate plan, you can write a new Will that explicitly revokes the old one. You cannot partially revoke a Will in Florida. But you can revoke a Will by writing a new inconsistent version or by adding a codicil. A codicil amends your existing will, replacing outdated lists of property or beneficiaries, while keeping the remainder of the document intact.

It is important to tell your estate planning attorney if you are trying to update an old, out-of-date Will. That way, they can include specific language indicating that you want to revoke your Will. Without this revocation language, the Florida probate court will try to apply both Wills, to the extent they do not directly contradict one another, at which point the later Will controls. This can create problems, especially for the recipients of your residuary estate, who may end up receiving far less than you intended.

Revoking a Will by Act

A testator can also revoke a written Will (but not an electronic Will) by physically damaging or destroying it. Usually this type of will revocation is raised by a person’s natural heirs during the probate process. In the absence of the original Will, a presumption arises that the decedent intended to revoke the will. The presumption is such that anyone seeking to probate a copy of the Will must establish that the inability to locate the original was not a result of the decedent’s destruction and intention to revoke the will.

Revocation of a Will by Operation of Law

Sometimes, Florida law will have the effect of revoking some or all of the provisions of a Will. This can change who will receive your assets after you die, and sometimes leave gaps in your estate plan.

When spouses write estate plans and then get divorced, the final judgment of divorce can sever a spouse’s beneficiary rights under the Will. By law, if the Will was executed prior to the divorce, the testator’s former spouse is treated as if he or she died the day the judgment of divorce is entered. But because divorce happens in civil court, rather than probate court, the judge handling the estate may not realize the divorce occurred. If a former spouse seeks to inherit under a person’s Will, other family members can file a Will challenge seeking to enforce the law revoking his or her right to benefits.

An adoption or termination of parental rights can also significantly affect your estate plan when it comes to your children. Adopted children are treated just the same as biological children for inheritance under Florida intestacy law. However, if you adopt a new child, but don’t update your Will, the child may be treated as “pretermitted” under section 732.302, Florida Statutes. Although the child could be provided for under this statute, the result may not reflect your testamentary intentions.

Similarly, if someone else adopts your child (with the exception of certain exclusions set forth in section 732.108, Florida Statutes), or if a court terminates your parental rights to your child for any other reason, he or she is no longer considered a child for intestate succession or estate administration purposes. There’s nothing stopping you from specifically awarding a former child property as part of your Will, but once your legal parental relationship has ended, they will no longer fall into the category of “my children.” Nor will they be entitled to receive inheritance as a natural heir if your Will is invalidated.

Get Help Contesting a Will in Florida

At Harrison Estate Law, P.A., our experienced estate and probate team can help you determine the need for a will revocation or update, and in so doing, help you be sure your family members are provided for as intended. Contact us here or call 352-559-9828 to get help today.