A codicil is a legal document that is used to make changes to an existing last will and testament.
How does a codicil work?
A codicil changes the terms of a will. While a codicil is its own separate document, it only works when paired together with an existing will.
The basics of wills
A will (formally called a “last will and testament”) is a legal document. It states a person’s wishes for her property and minor children (if any) for after death. It’s also where one names a personal representative to be in charge of settling your affairs. A person who creates a will (called a “testator”) must sign the will according to specific legal requirements, usually involving witnesses and a notary. A will takes effect only after the testator passes away and the will is submitted to the local probate court.
Adding a codicil to your will
Once there’s a will in place, a codicil can be used by the testator to change that will. The codicil must be executed according to the same requirements as the will itself and, after the testator’s death, must be submitted to the local probate court along with the will itself. Of course, another method for changing a will is simply to make a new one. With modern developments in technology and software, making a new will is usually the better choice given that codicils were created in a time when rewriting or re-typing an entire will was not feasible. The advantages of making a new will versus a codicil will be discussed further below.
Example of a codicil
Imagine Arthur creates a will. In his will, he leaves all of his property to his wife, Wendy. As a backup plan, his will says that if Wendy dies before him, his sister, Sally, should get everything. A few years later, Arthur changes his mind. He decides that if Wendy predeceases him, he’d rather his brother Bernard get everything — not his sister Sally. So, Arthur needs to change his will.
Enter the codicil. To replace Sally with Bernard , Arthur could draft a codicil. The codicil would provide that Bernard, not Sally, should receive everything as a backup to Wendy. The result: Everything else in Arthur’s will stays the same, but now Bernard will be the backup instead of Sally. Upon signing his codicil according to his state’s requirements, Arthur would need to make sure to store the codicil together with the will as they would both need to be admitted to probate when the time comes to distribute the assets in his estate.
A codicil versus a new will
Updating your will with a codicil
In general, it is not a good idea to change your will with a codicil. Using a codicil can result in confusing, inconsistent, or conflicting legal terms. The court may struggle to determine: Is the codicil meant to simply be an addition, or is it supposed to negate something in the original will? If it’s negating something, should that something be replaced, and with what? This could have unintended consequences, or render an important provision—or even the whole will—invalid.
For example, let’s say Ken has a last will and testament in which he states that upon his passing all property should go to his friend, Sam; and if Sam is not alive, the property should pass to Sam’s children. Ken later changes his mind and wants his property to go to his other friend, Otto, instead of Sam. So Ken executes a codicil stating that in his will Otto should replace Sam as the beneficiary of his property.
However, if Otto passes away before Ken who should receive the property? Is it Otto’s children or Sam’s children? Because Ken’s codicil did not address this issue specifically, this decision would be left up to the court. Of course, this is a simplified example, but it illustrates the kind of issue that arises with codicils.
Making a new will to replace an old one
Whether making minor changes or major changes, creating a new will has several advantages over using a codicil:
- First, a new will ensures your wishes are comprehensive and all in one place. As shown in the above example, having a piecemeal plan, where some wishes are in your will and other wishes are in your codicil, can cause confusion and lead to misinterpretation or undesired outcomes. Creating a new will allows you to have one singular document that contains all your final wishes.
- Second, having one single document (a will) versus multiple documents (a will plus one or more codicils) is beneficial when it comes to storing and keeping track of your plan. As mentioned above, both wills and codicils must be submitted to the probate court. Having just one testamentary document eliminates the possibility of any part of your plan being lost, misplaced, or otherwise left out. Moreover, the execution requirements for both wills and codicils are the same. So long as you’re carrying out the legal signing requirements, you might as well make a new will.
- Finally, given the availability of quality will preparation software , it’s never been easier to make a will. Codicils made more sense in the old days, when creating a new will meant writing out the whole thing again by hand, or retyping it all on a typewriter. And you no longer need the assistance of an estate planning attorney to create your will or make a new one. With online will making software, you can easily create a new will on your own in minutes!
If you do choose to make a new will, make sure to include a complete revocation of any prior wills you have created. A good will preparation software will include a provision to this effect. And be sure to destroy the old will (both the original document and any copies) to avoid any potential confusion.