Codicil: The Will Amendment Explained

What Is a Codicil?

A codicil to a will is a legal document used to make minor changes to your existing will without having to rewrite the entire document. It's a flexible tool for updating your estate plan when there are minor changes. Codicils must be executed with the same formalities as a will to ensure validity.

How Does a Codicil Work?

A codicil works as an amendment to an existing will, allowing for changes or additions without the need to draft a new will from scratch.¹ Here's how it typically functions:

• Identification of Changes: The first step in creating a codicil is to identify the changes you want to make to your will. This could involve altering the distribution of assets, changing executors, or adding beneficiaries.
• Legal Documentation: A codicil must be written, signed, and witnessed according to the same legal standards that apply to the original will. This usually means it must be signed in the presence of witnesses who understand that the document is an amendment to a will.
• Attachment to the Original Will: Once correctly executed, the codicil is attached to the original will. It's important that it's stored with the will or in a place where it can be easily found after the testator's death.
• Execution During Probate: Upon the testator's (the person who made the will) death, the codicil is read alongside the will during the probate process. The codicil's instructions should be followed, modifying the original will as specified.
• Legal Standing: Once properly executed, a codicil holds the same legal weight as the will. It must be clear, unambiguous, and not conflict with other parts of the will unless it specifically states that it is revoking specific clauses in the will.

The codicil must be as clear and specific as possible to avoid any confusion or disputes during the probate process.

What Are the Legal Requirements for a Codicil?

The legal requirements for a codicil vary by jurisdiction but generally include the following:

• Capacity: The person creating the codicil (testator) must have the legal capacity to do so, meaning they are of sound mind and of the age where they can legally make a will, typically 18 years or older.
• In Writing: A codicil must be written. While this typically means a physical document, some jurisdictions may allow digital documents under certain conditions.
• Signature: The testator must sign the codicil. If they cannot sign it themselves, they may direct someone else to sign on their behalf in their presence.
• Witnesses: Like a will, a codicil must usually be signed in the witnesses' presence. Two witness signatures are typically required. Witnesses should be disinterested parties, meaning they do not stand to benefit from the codicil.
• Intent: The document must clearly state that it is a codicil to an existing will and intends to amend, revoke or add to its provisions.
• Consistency: The codicil must reference the date of the will it is amending to avoid any confusion about which will it pertains to, especially if there have been multiple wills or codicils.
• Clear Terms: The changes proposed by the codicil must be clearly described to avoid ambiguity in the testator's instructions.
• Voluntariness: The testator must create and sign the codicil of their own free will, without any undue influence or duress from others.

If these requirements are not met, the codicil may be deemed invalid, which could result in the will being executed without regard for the changes proposed in the codicil, or in a worst-case scenario, the entire could be invalidated if the codicil introduces significant confusion or inconsistencies.

It's advisable to consult with an attorney specializing in estate law to ensure that a codicil is legally enforceable.²

Does a Codicil Have To Be Notarized?

Whether a codicil needs to be notarized depends on the state's laws of the jurisdiction in which the will and codicil are being executed. Generally, for a codicil to be valid, it must meet the same legal requirements as a last will and testament, which typically include being in writing, signed by the testator, and witnessed by at least two disinterested parties.

In many jurisdictions, a will or codicil does not need to be notarized to be legally valid. Some people choose to notarize a codicil for extra verification, as a notarized document carries a presumption of validity that can be useful if the codicil is contested in court.

When To Use a Codicil?

Here are some common reasons why people use codicils:

• To Update Beneficiary Information: This may include adding or removing beneficiaries, changing the percentage of the estate each beneficiary receives, or naming a new beneficiary for a specific asset.
• To Change the Executor: The executor is responsible for carrying out the instructions in your will. If you need to replace your executor, you can do so with a codicil.
• Modifying Specific Bequests: This may include changing the amount of money or property you leave to a beneficiary or changing how a particular asset is distributed.
• To Clarify or Correct Mistakes: If your will contains mistakes or ambiguities, you can use a codicil to correct them.
• To Update the Will After Getting Married or Divorced: If you get married or divorced, it's important to update your will to reflect your new marital status. You can do this with a codicil.

Here are some situations in which you should not use codicils:

• If You Need to Make Major Changes to Your Will: To make significant changes to your will, it's preferable to create an entirely new will that supersedes the old will rather than using a codicil that merely amends it.
• If Your Will Is Outdated: If your will no longer reflects your current wishes or contains outdated legal language, you should create a new will instead of using a codicil. This will help ensure that your estate plan is up-to-date and that your wishes will be carried out as you intend.

If you are unsure whether or not a codicil is right for you, it is always best to consult an attorney. An attorney can help you understand your options and ensure you take the best steps to protect your estate and loved ones.

Pros & Cons of Using a Codicil

Benefits

• Convenience: Codicils are simpler and more convenient to create than new wills.
• Cost-effectiveness: Codicils are typically less expensive to create than new wills.
• Flexibility: Codicils can be used to make a wide variety of changes to your will.

Drawbacks

• Complexity: Creating codicils can be complex; for them to be valid, it is crucial to execute them properly. Having multiple codicils can create confusion.
• Potential for errors: There is a more significant potential for errors when using a codicil than when creating a new will. A codicil might introduce conflicting terms with the original will, creating ambiguity and a lack of clarity.
• Limited scope: Codicils can only be used to make minor changes to your will.

Can I Write a Codicil Myself?

Yes, you can write a codicil to your will yourself. The general steps for writing a codicil to a will should be approached with care as a formal process to ensure its legal validity.

1. Review the Original Will: Begin by reviewing your current will to determine what changes are necessary. Be clear about which provisions you are altering, adding, or removing.
2. Draft the Codicil: Write the codicil either by hand or type it. Start by stating your full name and address, and identify the codicil as an amendment to your will. Reference the date of the original will.
3. State the Changes Clearly: Specify the changes in clear and unambiguous language. For example, "I hereby amend my will dated [original date] as follows..."
4. Revoke or Amend Clauses: If you're changing a specific clause, state clearly that you're revoking the old clause and then specify the new one. If possible, the same numbering or lettering system as the original will is recommended.
5. Sign and Date the Codicil: Like a will, you must sign and date the codicil in the presence of witnesses. You must do this according to your jurisdiction's laws regarding wills.
6. Witnesses: Have at least two unbiased witnesses sign the document. They should not be beneficiaries of the will or codicil. The witnesses should sign in each other's presence, affirming that you are of sound mind and signed voluntarily.
7. Notarize (Optional): Although not always required, notarizing the codicil can add an extra layer of validity and help make it a "self-proving affidavit," which can expedite the probate process.
8. Store the Codicil Safely: Attach the codicil to your will and store it in a safe place with your legal documents. Inform your executor or personal representative where it is located.
9. Inform Relevant Parties: While you do not need to disclose the contents, it may be prudent to inform beneficiaries or executors that a codicil has been added to your will.
10. Seek Legal Advice: If possible, consult an attorney to ensure the codicil meets all legal requirements and accurately reflects your wishes.

Remember that a codicil is a legal document and must be written and executed with the same formality as a will. Mistakes can render it invalid and may cause your entire will to be contested or subject to probate litigation. Having an attorney review your codicil before finalizing it is always best.

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Sources

1. Legal Information Institute - Codicil. https://www.law.cornell.edu/wex/codicil
2. American Bar Association - Do It Yourself Estate Planning. https://www.americanbar.org/groups/real_property_trust_estate/resources/estate_planning/diy_estate_planning/
3. Free Will from Fabric by Gerber Life, a member of the Western & Southern Financial Group Family of Companies. https://www.westernsouthern.com/about/family-of-companies.