Like a will, a codicil to a will is a testamentary instrument, included after the initial will is executed. Essentially, writing a codicil to a will alters or expands the provisions in a previous will.
Codicils are often used to account for changes among will heirs beneficiaries such as including or excluding heirs and beneficiaries or placing additional assets into the decedent's estate. In addition to modifying the will, a codicil to a will may perform other functions.
These functions include republishing a prior valid will; incorporate by reference, and thus validate, a previously invalid will; or revive a previously revoked will that is still in existence. When adding a codicil to a will, it also must be executed with the same formalities as the original will.
Also, the codicil must make some particular reference to the will it amends. When the testator dies, the original will and the codicil are reviewed by the probate court.
Adding a Codicil to an Existing Will
A codicil can be either attested or holographic. An attested codicil is in writing and is signed by the decedent and duly witnessed. A holographic codicil also must be in writing and is signed by the decedent, but the document need not be witnessed, rather material portions of the will must be in the testator’s handwriting and reflect the decedent’s intent
Like a will, the testator may revoke a valid codicil in full or in part. Revocation can occur explicitly by executing a new will or subsequent codicil. Further, a physical act by the testator that indicates intent to revoke may also suffice to revoke the codicil. Revocation of a codicil does not revoke the original will, even if the testator so intended.
When a Codicil to a Will May be Used
Examples of when a codicil may be used involve situations in which a person may be removed from the will, rather than execute an entirely new will simply to remove a name the testator may execute a codicil reflecting this change. Another example of when a codicil to a will might be needed involves if the testator outlives a beneficiary originally named in the will.
Since a deceased person legally, and for practical reasons, cannot inherit from an estate, the testator will need to account for this change in the codicil by perhaps adding the children of the deceased beneficiary or selecting someone entirely different.
Is a Codicil Required or Needed?
In deciding whether a codicil is necessary, an important question involves whether the testator’s wishes are best served by a codicil or is better served by executing a new will. One consideration rests in whether the changes contemplated by the codicil are complicated or comprehensive.
If the changes are simple, such as changing executors, a codicil will suffice. However, if the changes are complicated a new will may need to be drafted to avoid potential complication in the future.
Further, when considering a codicil, an overriding question one may consider is will the codicil complicate how the will is interpreted. For example, adding provisions in a codicil that could contradict the terms of the original will or add extra conditions, which may add extra work to the task of distributing assets in the estate.
Lastly, if a previous codicil(s) has been executed it is worth considering revamping the original will to incorporate all of the terms contained in the additional codicils
On the other hand, if it is determined that the content of a codicil will not overly complicate the original will, a codicil can be a quick and cost-effective method to alter a will. A codicil can streamline the process of amending a will since the entire document will not need to be revamped.
Secondly, a codicil can act as an efficient way to add flexibility to a will that may be subject to changes regarding who is to benefit from the estate or changes in the assets included in the estate.
Lastly, a properly drafted codicil can, under the right circumstances reduce the risk of a will being tied up in probate disputes, which are obviously costly and time consuming.
Help with Codicil to a Will
An attorney experienced in drafting a codicil to a will can provide legal advice regarding what to expect from a codicil to a will and the steps needed to execute this document. Further, counsel experienced in codicils can provide information as to whether a codicil is advisable under your circumstances.
Finding an experienced attorney for a codicil to a will offers a measure of protection for those administering an estate. Further, it can reduce a great deal of uncertainty and potentially avoid will contests and other time consuming and costly probate matters.