I have a will and a general durable power of attorney and want to change the second named personal representative in those documents (my spouse is named as the first). Can I just line out the previous name, print the new name and initial the change for the change to be viewed as a legal and binding change?
One similarity between wills and durable powers of attorney is that they are both governed by state statute. The similarity ends there, according to Johns, Flaherty & Collins attorney Maureen Kinney. Wills and durable powers of attorney are very different documents that must be handled separately.
Regarding the will, if you line out the previously-named personal representative and write in a new name it will not be recognized as a legal and binding change. Wisconsin statutes require that the will be (1) in writing, (2) signed by the person making the will and (3) signed by two or more witnesses. Once the will has been executed with the above three formalities, it can be considered valid and it is effective as written.
To make a legal and binding change to provisions in a will, the person who executed the will should execute a codicil. A codicil is a supplement or addition to a will that explains or modifies its provisions. Because it changes a will, it must meet the same three requirements.
Powers of attorney, on the other hand, name attorneys-in-fact or agents, rather than personal representatives. With these documents, you may change the agent by lining out the name in the document and have the change recognized as legal and binding.
It's important to note that Wisconsin statutes merely require powers of attorney to (1) be in writing and (2) clearly show the agent's authority, so all it takes for the agent to act on your behalf is possession of the document. That means the agent whose name is being "lined out" can still act on your behalf if he or she has the document. To prevent unauthorized use of a revoked power of attorney, it is a good idea to obtain all copies of the revoked power of attorney from all agents and, in the example above, notify everyone honoring the power of attorney that it has been revoked.
Information provided by Maureen Kinney, La Crosse estate planning attorney at Johns, Flaherty & Collins. For an estate planning attorney in La Crosse, call her at 608-784-5678.