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Precipitating Circumstances for a Codicil to Will - Werner Law Firm

Precipitating Circumstances for a Codicil to Will

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Written by Troy Werner

Troy Werner has been an indispensable asset to The Werner Law Firm since joining in 2009, providing exceptional legal service to its clients.

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POSTED ON: September 16, 2022

Your last will is the single valid version of your will that a probate court will use to determine how to distribute your estate. You may have multiple wills and numerous documents attached to each will, but only your last will is valid, as is every attributed codicil to the will. If a person frequently […]

Your last will is the single valid version of your will that a probate court will use to determine how to distribute your estate. You may have multiple wills and numerous documents attached to each will, but only your last will is valid, as is every attributed codicil to the will. If a person frequently alters their will without rendering previous iterations invalid, making sense of their estate plan can be challenging.

Because of this, codicils are not as popular as they used to be. Rather than amend a will, many estate planning professionals will recommend simply creating a new one and rendering the old will officially invalid, especially if you intend to make more than one or two changes. Despite this, there are still circumstances under which you may want to create a codicil to amend a will.

What Is a Codicil to Will?

A codicil is a legal appendix to an existing last will. Like other legal amendments, it is attached to the document physically and through the witnessed signing and notarizing of the codicil. An official can deem a codicil invalid if it is not correctly witnessed, signed, and notarized before being added to the will. A judge can also overrule a codicil. You can have multiple codicils, each dedicated to a different amendment and contradicting codicils.

However, only the latest codicil will be valid, and any contradicted codicil should be stamped as invalid to avoid confusion. In general, this is the codicil's greatest weakness – as the years go on. As your interests and priorities continue to change and evolve, your will should reflect your wishes accordingly, which could mean over a dozen changes.

The exact procedure for creating and legitimizing a will and a codicil may differ from state to state. Some significant differences to keep in mind: some states allow handwritten or holographic wills to be self-evident but may not allow the same standard for codicils. Simply amending a will physically by altering a typed will with a handwritten comment can invalidate the entire document, even if it was previously signed and notarized.

Take care to separate the original document from your codicils, and have each change legitimized the right way, as per state law. An estate planning professional can help direct you to the local requirements for the last will and testament and any given amendment to said will.

When Would I Need to Amend a Will?

Create a codicil to amend a will when the changes you intend to make are minute or singular, such as changing a surname to reflect a new marriage or divorce, shuffling your beneficiaries around, or choosing a different executor to handle your estate after your death. The need to amend a will in the future shouldn't deter you from creating one now or wanting to review and amend your will when the time comes.

Wills are contingency documents, and their entire purpose is to ensure that a set of directions and instructions exist for your loved ones to make sense of your wishes and to lend legal weight to those wishes if other contingencies are unavailable or appropriately enacted. A codicil to a will is useful whenever you need to change your will but haven't accumulated enough changes to warrant the drafting and creating of an entirely new will document.

Making the Most of Your Will

In addition to amendments, you should consider using property memorandums to specify how to divide your estate in the event of your death. Most plain wills note that you wish for officials to distribute your estate among your children or to exclude a specific heir.

A property memorandum specifies who gets what. You can note that you would like your valuable baseball card collection to go to your youngest daughter with interest in collecting or that you want your car to go to your eldest son. He has taken care of it for the last few years.

Codicil to New Will vs. Creating a New Will

An amendment to a will can ensure that your last will and testament are up to date with your wishes before you pass away. But one too many codicils can turn an officiated form of guidance and instruction into a nightmare of mixed messages, conflicting information, and missing details. There comes the time when you must update your will through a new will rather than another amendment.

Depending on the changes you have in mind, your estate planning lawyer may suggest creating a new will over making a codicil because both processes are similar. It ultimately takes the same effort to draft and notarize a new will as it does to create a codicil. A public notary must witness, sign, and notarize your new will. If you intend to make multiple changes within a short period, the assorted costs for multiple codicils can begin to pile up.

However, that does not mean you should avoid making any changes if you only wish to make one change to your will. A better approach would be to make changes to your will as soon as they become necessary and then create a new will. The new will would incorporate all the most recent changes and reflect your current priorities when the number of existing valid codicils makes your will obtuse or confusing.

The Bottom Line

Wills can be valid for directing your estate into the hands of your loved ones in the exact order you've envisioned. But they still have their limits. Other estate planning tools, such as trusts, offer a more fine-tuned approach to wealth distribution and legacy planning. Consult your estate planning professional to learn more about how a trust might help you leave more specific and updated instructions for your loved ones.

Precipitating Circumstances for a Codicil to Will - Werner Law Firm

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