FAQs About Wills in Rhode Island

The following FAQ resource addresses many common questions about making a will in Rhode Island. If you have more questions or need advice regarding your specific situation, please reach out here.

What are the legal requirements for making a valid will in Rhode Island?

To execute a valid Will in Rhode Island, you must be at least 18 years old and of “sane mind” (having testamentary capacity). The Will must be in writing and signed by you, or by someone else in your presence and at your express direction. Crucially, your signature must be made or acknowledged in the physical presence of at least two competent witnesses who are present at the same time.

Does getting married or divorced automatically change my Will?

Yes. In Rhode Island, getting married automatically revokes your entire existing Will, unless the document explicitly states that it was made in contemplation of that specific marriage. Conversely, a finalized divorce automatically revokes any provisions in your Will that benefit your former spouse, treating them for legal purposes as if they had died before you.

Can I leave a family member, like a spouse or a child, out of my Will?

You can disinherit a child, but you must state your intention to do so clearly and explicitly in the Will. If you simply fail to mention a child, Rhode Island’s “pretermitted child statute” presumes it was a mistake, and that child may automatically receive a portion of your estate.

Disinheriting a spouse is significantly more difficult. Under Rhode Island law, a surviving spouse has a right to “elect against” the Will. Even if you leave them nothing, they have a statutory right to claim a life estate in your real estate and an allowance of up to $150,000, unless they previously signed a valid prenuptial or postnuptial agreement waiving those rights.

Can one of my beneficiaries serve as a witness to my Will?

Under Rhode Island law, if a beneficiary named in the Will also serves as one of the required witnesses, the Will itself remains valid, but the gift or bequest to that specific witness becomes completely null and void. Witnesses should always be completely disinterested parties.

What is a “Self-Proving Affidavit” and do I need one?

A self-proving affidavit is a sworn, notarized statement signed by your witnesses at the time your Will is executed, confirming that all legal formalities were followed.

While your Will is technically valid without it, having this affidavit is highly recommended. It speeds up and simplifies the probate process by allowing the Probate Court to accept the Will without needing to locate the original witnesses to testify after you pass away. Learn more here.

How do I name a guardian for my minor children?

In Rhode Island, you legally nominate a guardian for your minor children within your Will. The Probate Court will appoint your chosen nominee unless good cause is shown to the contrary.

It is standard practice to nominate a guardian of both the “person and the estate” and to include specific language waiving the requirement for the guardian to furnish “sureties” on their fiduciary bond. This waiver saves your estate the ongoing expense of purchasing a commercial surety bond.

Can I use a separate list or memo to give away specific personal items, like jewelry, art, or furniture?

Yes, but it is important to understand the difference between a binding and nonbinding list. To be legally binding in Rhode Island, a memorandum must be in existence at the exact time your will is signed, and your will must incorporate it by reference.

Because this is inflexible, most clients prefer to use a “nonbinding” or “precatory” memorandum. This allows you to update your list of who gets which personal items at any time without needing to formally re-sign your will with witnesses, though it relies on your executor and family to honor your recommendations.

What happens if I leave a specific item (like a car or house) in my will, but I sell it before I die?

Under Rhode Island law, this triggers a rule called “ademption by extinction”. If you make a specific bequest of an item (for example, “my 1984 sailboat”) and you no longer own it at your death, the gift is completely canceled.

The beneficiary will not automatically receive the cash equivalent or the proceeds from the sale of that item. To avoid this, your will must be drafted with specific alternative language regarding the sale proceeds. These situations usually require careful drafting with the assistance of an attorney.

What happens if a beneficiary named in my will dies before I do?

If a beneficiary predeceases you, Rhode Island’s “anti-lapse” statute may apply. If the deceased beneficiary leaves children or descendants who survive you, the gift will automatically pass to their descendants by right of representation. However, if the beneficiary leaves no descendants, or if your will includes express language making the gift contingent (such as “only if he survives me”), the gift will fail (lapse) and become part of your residuary estate.

How can I safely revoke or change my existing will?

The most reliable way to revoke a will in Rhode Island is to execute a new will that includes express language revoking all previous wills and codicils. You can also revoke a will by physically “burning, tearing, or otherwise destroying” the document with the specific intention of revoking it.

Notably, simply crossing out lines with a pen and writing “obliterated” has been ruled insufficient by the Rhode Island Supreme Court; the physical destruction must be absolute.

What if I have another child after I sign my will? Do I need a new will immediately?

Rhode Island has a “pretermitted child” statute to protect children born after a will is executed. If you have a child after signing your will, that child will automatically receive the share of your estate they would have received if you had died without a will (their “intetestate share”), unless it is proven by a preponderance of the evidence that your omission of the child was intentional and not an accident or mistake.

Are adopted children treated the same as biological children under my will?

Under Rhode Island law, terms in a will like “children,” “issue,” or “descendants” automatically include lawfully adopted children unless your will specifically states otherwise. However, an individual who is adopted after they reach the age of 18 is not deemed a child or descendant for inheritance purposes.

Should I include my funeral and burial instructions in my will?

While you can include these wishes in your will, it is highly discouraged. Decisions regarding funeral arrangements and organ donation are usually made long before the will is located or validated by the Probate Court. Instead, Rhode Island law allows you to execute a separate “Funeral Planning Agent Designation” form, which gives a designated agent the immediate legal authority to make arrangements for your remains and funeral.

Does my will control who gets my life insurance, 401(k), or joint bank accounts?

A will only controls the distribution of “probate assets,” which is property titled solely in your individual name without a designated beneficiary. Non-probate assets (i.e., real estate held as joint tenants with rights of survivorship, individual retirement accounts (IRAs), life insurance policies, or bank accounts with a “payable on death” (POD) or “transfer on death” (TOD) designation) pass automatically by contract to the surviving joint owner or named beneficiary. These assets bypass the Probate Court entirely and are distributed regardless of what your will says.

Learn more about “will substitutes”.

Can I name someone who lives out of state to be the Executor of my Rhode Island will?

Yes. Rhode Island law does not require your nominated executor to be a resident of the state. However, for a nonresident executor to formally qualify and serve after your death, they must file a specific form with the Probate Court appointing a Rhode Island resident to act as their “resident agent”. This agent’s purpose is to receive service of process and legal documents within the state on behalf of your estate.

Is my will still valid in Rhode Island if I executed it while living in another state? 

Generally, yes. If you signed your will in another state before moving to Rhode Island, local Probate Courts will recognize it as valid as long as it was executed in conformity with either Rhode Island law, the law of the state where it was signed, or the law of the state where you were domiciled at the time of execution.

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