What Is a Will Codicil?

There are a number of reasons for adding a codicil to an existing will. KAKE.com’s recent article entitled “Using a Codicil to Modify a Will” says it’s good to know when you might need one and how to add it.

A codicil is a way to change the terms of an existing will. A codicil allows you to modify a term in your will, without the need to rewrite the whole will. A codicil is used in cases where you only need to make relatively minor changes.

There are different situations that might require a codicil to be added to your will. Here are some examples:

  • You want to add or remove an heir
  • You’ve acquired or disposed of property you need to update in your will
  • You need to change the executor of your will
  • You want to change the person designated as a legal guardian for your minor children
  • You recently were married or divorced and need to change how your assets or property will be distributed; or
  • You want to make changes to how your assets and property will be divided for other reasons.

Adding a codicil to a will make certain that the will is current, as you go through different life events or if your financial circumstances change. This can help eliminate the chance that your will may be challenged after you die, because those named as beneficiaries disagree with the will’s terms. It can also help to avoid lengthy delays in probate associated with property you no longer own or property you haven’t addressed in the will.

Remember that a codicil allows you to change your will. However, revoking a will terminates it completely. Ask an experienced estate planning attorney about the laws for revoking a will in your state. Some states let you simply physically destroy the will, and in others, you may need to draft a written declaration stating that your will has been revoked or draft a new replacement.

If you need to make substantial changes to the terms of your will, then revoking it and creating a new will may be the better plan. A new will in place can avoid confusion during probate, if there are conflicting terms. You may also need to write a new will, if all copies of your existing will are unintentionally lost or destroyed.

Drafting a codicil to a will, is like writing a will itself. The codicil needs to follow the legal guidelines established in your state. Ask an experienced estate planning attorney for help.

Reference: KAKE.com (June 17, 2020) “Using a Codicil to Modify a Will”

How Can I Make Amendments to an Estate Plan?

If you want to make changes to your estate plan, don’t think you can just scratch out a line or two and add your initials. For most people, it’s not that simple, says the Lake County Record-Bee’s recent article “Amending estate planning documents.” If documents are not amended correctly, the resulting disappointment and costs can add up quickly.

If you live in California, for example, a trust can be amended using the method that is stated in the trust, or alternatively by using a document—but not the will—that is signed both by the settlor or the other person holding the power to revoke the trust and then delivered to the trustee. If the trust states that this method is not acceptable, then it cannot be used.

In a recent case, the deceased settlor made handwritten notes—he crossed out existing trust language and hand wrote his revisions to a recently executive amendment to his trust. Then he mailed this document, along with a signed post-it note stuck on the top of the document, to his attorney, requesting that his attorney draft an amendment.

Unfortunately, he died before the new revision could be signed. His close friend, the one he wanted to be the beneficiary of the change, argued that his handwritten comments, known as “interlineations,” were as effective as if his attorney had actually completed the revision and the document had been signed properly. He further argued that the post-it note that had a signature on it, satisfied the requirement for a signature.

The court did not agree, not surprisingly. A trust document may not be changed, just by scribbling out a few lines and adding a few new lines without a signature. A post-it note signature is also not a legal document.

Had he signed and dated an attachment affirming each of his specific changes made to the trust, that might have been considered a legally binding amendment to his trust.

A better option would be going to the attorney’s office and having the documents prepared and executed.

What about changes to a will? Changing a will is done either through executing a codicil or creating and executing a new will that revokes the old will. A codicil is executed just the same way as a will: it is signed by the testator with at least two witnesses, although this varies from state to state. Your estate planning attorney will make sure that the law of your state is taken into consideration, when preparing your estate plan.

If you live in a state where handwritten or holographic wills are accepted, no witnesses are required and changes to the will can be made by the testator directly onto the original without a new signature or date. Be careful about a will like this. Even if legal, it can lead to estate challenges and family battles.

Speak with an experienced estate planning attorney, if you decide that your will needs to be changed. Having the documents properly executed in a timely manner ensures that your wishes will be followed.

Reference: Lake County Record-Bee (October 5, 2019) “Amending estate planning documents.”