Destroying Your Old Estate Planning Documents

Author: Sharon W. Salmon

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There are various reasons why an individual may decide to obtain new estate planning documents to replace older ones.  For example, one may decide to update their estate plan after a new marriage, the birth of a child, or the death of a loved one, etc.  It is important that the new Will include a provision revoking all previously made Wills and Codicils.  Under Maryland law, such a provision is sufficient to revoke a prior Will.  See Md. Code Ann., Est. & Trusts § 4-105.  However, in addition to the inclusion of such language, it is also wise to destroy any previously made Wills.  This helps to avoid confusion and challenges to the new Will.  The existence of more than one original Will could result in someone accidentally or deliberately probating the older Will in court.  Note that under Maryland law, a Will can be revoked by burning, cancelling, tearing up, or obliterating it.  Id.    

Another consideration should be the destruction of any other old estate planning documents, such as a Power of Attorney or an Advanced Medical Directive.  Attorneys often draft these types of documents along with a Will.  It would be dangerous to have an old Power of Attorney or Medical Power of Attorney floating around if new documents have been prepared, as the named agent, or attorney-in-fact, in an outdated document could come forward and attempt to exercise rights previously granted to them.

There are two instances in which an older Will is automatically revoked.  If the person who executed the Will (the testator) subsequently gets married, followed by the birth, adoption, or legitimation of a child by the testator, where the child survives the testator, then all Wills executed prior to that marriage will be revoked.  Id.  In addition, the absolute divorce of a testator and his spouse or the annulment of the marriage, either of which occurs subsequent to the execution of the testator’s Will, results in automatic revocation of all provisions in the Will relating to the former spouse.  Id.  If you have experienced one of these circumstances and consequently have outdated estate planning documents, it would be wise to revise and re-execute your Will and/or other estate planning documents.

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