A codicil is an addendum or amendment to a last will and testament. It takes priority over the original document, provided it is dated and witnessed correctly, and thus properly supersedes the will. The term itself comes from the Latin cōdicillus, which translates into “a short writing” – explaining exactly what a codicil should be.
Your codicil is not an entirely new will, nor should it be used to make sweeping changes to multiple aspects of your will. Think of your codicil as an opportunity to make a short addition or quick change to the substance of your will.
Understanding a Codicil
A codicil is a separate document from the will’s main document. You need not copy and alter the original will to create a codicil – simply define the changes you wish to make to the document in the proper legal language, date and sign the document in the presence of multiple impartial witnesses and add it to the will (wherever it is kept). A codicil should be reserved for relatively minor alterations. These might include:
- Removing a specific gift/bequest, or adding a new one to an existing beneficiary
- Changing your chosen representative or executor of the estate
- Altering names changed by marriage or divorce, or other legal name changes
Some changes should be reserved for an entirely new will, rather than an addendum. This includes removing or adding new beneficiaries.
If the codicil is not kept along with the will, there is a good chance it might be lost before or during the probate process. Keeping the codicil alongside the will ensures that whoever takes it upon themselves to petition the probate court and provide the necessary documents provides the latest version of your last will and testament.
How is a Codicil Created?
The first prerequisite for a codicil to the will is mental competence. One reason both the will and any addendums to it must be witnessed by impartial witnesses (who have nothing to gain from the will itself) is to testify as to your capacity to O.K. the creation and alteration of your last will and testament.
In much the same way, even if you do not write the codicil yourself, you must personally sign it in front of witnesses, and notarize the document before you pass away. In select states, you may create and sign a codicil in front of a public notary without additional witnesses.
The contents of the codicil should be plain. Working with a legal professional may help you create a codicil that is as clear as possible, while applying the correct terminology to avoid confusion, and ensure that your interests are represented as effectively and truthfully as possible.
Beware of Confusing Your Heirs
An addendum to your will is a great idea. Your estate plan, which often includes a will in addition to other legal documents accounting for your ongoing financial and personal legacy, is something that must evolve – it must keep up with the times, and more importantly, keep up with your interests. Wills written decades ago make no account for all the life-changing things that might have happened, from tragic losses to joyous additions to the family.
But there is a point at which you must draw a line. If you catch yourself drafting your fifth addendum with your lawyer, sit down and ask yourself: might it not be easier and smarter to simply create a new will? At this rate, your personal representative and the probate judge in charge of your probate process will have to carefully dissect and determine which elements of your original will remain intact, which changes your codicils have made, and in which cases your multiple codicils might contradict and supersede one another.
If you begin to lose track of the different iterations your will has gone through, it is time to make a new one. If you do not, you risk having your will become invalid.
A probate judge has the right to dismiss and reject any will that is unclear or confusing in its language or interests, as well as dismiss your codicils for muddling the picture of your final will. This means your estate may be distributed as per state law instead, according to your state’s intestacy succession. This excludes non-relatives, as well as any distant relatives you wish to leave something to and takes the choice of who gets what largely out of your hands.
When Should You Revisit Your Estate Plan?
In general, your estate plan – which, in addition to your will, may include an advance directive, a living will, a life insurance policy, one or more trusts, durable powers of attorney, and individual beneficiary designations – should be revisited and potentially revised every few years, or after every life-changing event (birth, death, marriage, divorce, etc.).
Creating a New Will
Once you are sure that your addendums have added up to a significant number of changes, and you are ready to compile these into a brand new will, it is just as important to ensure that your new will is valid (dating, witnessing, signing, notarizing) as it is to make sure that your old will and each respective codicil is invalid. To do so, take the original copy of your will and each codicil and either destroy them, or write REVOKED onto each page of your original copy, alongside the date on which you are revoking these documents, and your initials or a new signature for each page.
To reiterate – a codicil is a simple legal amendment to your will. More significant amendments, or multiple codicils, may call for a total redo of your will. Any changes made via a codicil must be authenticated, just like a will. The creation of a new will should be followed up with the official revocation of your old will and each codicil.
Revisiting your will with an estate planning professional is important. Not only can an estate planning professional help you compile all the changes you have made over time into a single comprehensive document, but they can assist you in revising your entire estate plan to efficiently and seamlessly manage your last financial and healthcare affairs, delegate specific tasks to your loved ones, and ensure that your estate and legacy makes a successful and painless transition in the event of your passing.