What is the Purpose of a Codicil?

If it's been a while since you signed your estate plan, it may be time for you to give it a quick review to see if changes need to be made. I recommend that clients do a full review of their documents every 3 years, but you can do it more frequently than that. Also, if you've recently experienced a major life change of some type, then it may be the right time to do an update to your estate plan documents.

When we are making a change to your will, we use a document called a codicil. Codicils are used to make minor changes to a will, such as updating the names of beneficiaries, changing executors, or adjusting specific bequests.

Understanding the nature and purpose of a codicil is essential for anyone involved in estate planning, as it offers a flexible and cost-effective way to update a will.

How Does a Codicil Work?

A codicil is essentially an addendum to a will. It must reference the original will and specify the changes being made. For example, a codicil might state that a new beneficiary is being added or that a different executor is now responsible for managing the estate. The codicil must be signed and witnessed in the same manner as the original will to be legally valid. This typically involves the presence of at least two witnesses who can attest to your sound mind and intent.

A codicil can modify, add to, or revoke parts of the will. It does not replace the entire document; rather, it works in conjunction with the original will to reflect your current wishes. Multiple codicils can be attached to a will, although having too many can create confusion and complications during probate. For this reason, significant changes to a will are often best handled by drafting a new will altogether.

When Should You Use a Codicil?

A codicil is appropriate when you want to make relatively minor adjustments to your will. Some common reasons for using a codicil include:

1. Changing Executors or Guardians: If the person named as the executor or guardian in the original will can no longer fulfill their role or you want someone else to take on the responsibility, a codicil can update these appointments.

2. Adding or Removing Beneficiaries: Life circumstances change, and so might the people you wish to leave your assets to. A codicil allows you to add or remove beneficiaries without rewriting the entire will.

3. Adjusting Bequests: The value of assets or specific items left to beneficiaries might change over time. A codicil can adjust bequests to reflect current values or desires.

4. Updating Personal Information: Changes in names or addresses due to marriage, divorce, relocation, or other reasons can be updated via a codicil.

5. Changing Provisions: Minor changes in the terms of the will, such as specific instructions regarding the care of pets or charitable donations, can be made through a codicil.

While codicils offer flexibility, they are not ideal for substantial changes. If a will requires extensive revisions, drafting a new will may be more straightforward and reduce the potential for ambiguity or legal challenges.

The Legal Requirements for a Codicil

To be legally binding, a codicil must meet certain requirements:

1. Written Document: A codicil must be in writing. Oral statements or promises are generally not legally enforceable as amendments to a will.

2. Clear Intent: The codicil must clearly state your intent to modify the existing will. It should reference the original will by date and explicitly outline the changes being made.

3. Signature: You must sign the codicil, just as you signed the original will. If you are physically unable to sign, another person may sign on your behalf, provided it is done in your presence and at your direction.

4. Witnesses: Like a will, a codicil must be witnessed. The number of witnesses and specific requirements (such as their age or mental capacity) may vary by what state you are in, but typically two witnesses are required. These witnesses must also sign the codicil in your presence.

5. Competence and Voluntariness: You must be of sound mind when creating a codicil and must do so voluntarily, without undue influence or coercion.

Codicil vs. Will: What’s the Difference?

While both a will and a codicil are legal documents related to estate planning, they serve different purposes:

• A Will is a comprehensive document that outlines how your assets and affairs should be handled after your death. It can specify beneficiaries, name guardians for minor children, and appoint executors to carry out your wishes.

• A Codicil, on the other hand, is a supplemental document that modifies or updates specific provisions within the original will. It does not replace the will but rather enhances or adjusts it to reflect your current wishes.

The decision to create a codicil versus drafting a new will often depends on the extent of the changes needed. For minor updates, I recommend a codicil because it is typically more straightforward and cost-effective. For more substantial revisions, a new will may provide clearer, more organized instructions and reduce the risk of misunderstandings or legal disputes.

Potential Drawbacks of Using a Codicil

While codicils are useful, they are not without potential drawbacks:

1. Complexity: Multiple codicils can create confusion, especially if they contradict each other or are not clearly worded. This can complicate probate proceedings and potentially lead to legal disputes among beneficiaries.

2. Risk of Invalidity: A codicil that does not meet all legal requirements, such as proper witnessing, may be considered invalid. This could result in parts of the will not being honored or the entire codicil being disregarded.

3. Loss or Misplacement: Because a codicil is a separate document from the will, there is a risk that it could be lost or misplaced. This could result in the original will being executed without the desired changes.

4. Potential for Fraud or Forgery: Codicils, like wills, can be susceptible to fraud or forgery. Ensuring proper execution and safekeeping is essential to avoid disputes.

Best Practices for Using a Codicil

To minimize potential issues with a codicil, consider the following best practices:

• Work with Your Attorney: Legal advice can help ensure that a codicil is properly drafted and executed, minimizing the risk of challenges during probate.

• Keep It Simple: If a will requires several changes, consider drafting a new will instead of creating multiple codicils. This approach reduces the risk of inconsistencies or confusion.

• Secure Storage: Store the codicil with the original will in a safe, accessible place (not a safe deposit box) and inform your executor or a trusted person of its location.

• Review Regularly: Periodically review your will and any codicils to ensure they still reflect your wishes and comply with current laws.

A codicil is a valuable tool in estate planning, offering a flexible and straightforward way to update a will. However, it is essential to understand when it is appropriate to use a codicil and when a new will might be more suitable. By following legal requirements and best practices, individuals can ensure that their estate plans accurately reflect their wishes and provide clear instructions for their loved ones.

Need Help With Your Estate Plan?

Choosing the correct documents for your estate plan is a vital first step, and if you need help deciding between a codicil and a new will, let's schedule a Legal Strategy Session online or by calling my Edina, Minnesota office at (612) 294-6982 or my New York City office at (646) 847-3560. My office will be happy to find a convenient time for us to have a phone call to review the best options and next steps for you to work with an estate planning attorney.