If you have worked with an estate planning attorney in the past, you may have heard the term “codicil.” A codicil is an addendum or amendment to a traditional Last Will and Testament. It takes priority over the original document, provided it is dated, witnessed, and notarized correctly. The properly executed codicil will supersede the will. The term comes from the Latin cōdicillus, which translates into “a short writing” explaining precisely what a codicil should be.
The codicil is not a new will and should not be used to make sweeping changes to multiple aspects of your estate plan. Think of your codicil as an opportunity to make a short addition or quick change to the substance of your will. It is truly a revision to an existing legal document without overhauling the document in its entirety.
Specific Parameters of a Codicil
A codicil is a separate document from the will’s main document. You do not need to copy and alter the original will to create a codicil. The codicil will define the changes you wish to make to the document in the proper legal language. It will then be signed and dated in the presence of two disinterested witnesses and a notary public. You will store the codicil with the will (wherever it is kept). A codicil should be reserved for relatively minor alterations. These might include:
- Altering names changed by marriage or divorce, or other legal name changes
- Changing your chosen representative or executor of the estate
- Removing a specific gift/bequest or adding a new one to an existing beneficiary
However, keep in mind that some changes should be reserved for an entirely new will, rather than an addendum or codicil. This includes removing or adding new beneficiaries. Also, 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 to Create a Codicil?
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 disinterested witnesses (people who have nothing to gain from the will itself) is to testify as to your mental capacity to approve of the creation and alteration of your Last Will and Testament.
The contents of the codicil should be plain. Working with an estate planning attorney will 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.
Preventing Confusion
A codicil or addendum to your will is an excellent idea. Your estate plan, which often includes a will in addition to other ancillary legal documents, must evolve and change as your life changes. For any estate plan to truly be effective, it must stay current and relevant to your life. Wills written decades ago make no account for all the life-changing events that have happened over the years, from tragic losses to joyous additions to the family.
However, there is a point at which you must draw a line. If you find yourself drafting your sixth codicil with your attorney, sit down and ask yourself: might it not be simpler and more prudent to create an entirely new will? At this rate, your executor and the probate judge in charge of your probate process will have to meticulously 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. As you can imagine, this can become quite tedious for all parties involved and your true intentions may be lost along the way.
A solid rule of thumb is if you 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 and defeat the purpose of the estate plan, to begin with.
Remember, a probate judge has the right to dismiss and reject any will that is unclear or confusing in its language or interests. Likewise, the judge may dismiss your codicils for the same reason as well. Thus, your estate may be distributed according to Texas state law instead. 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.
How Often Should You Revisit Your Estate Plan?
We recommend every three to five years, self-evaluate and check in with yourself. Have you acquired new assets or property? Have you added a child to your family? Have the children gotten married? Do you have grandchildren now? These are all major life events that must be memorialized in writing – in your Last Will & Testament.
Revisiting your will with an estate planning attorney is crucial. Not only can the Kazi Law Firm help you compile all the changes you have made over time into a single comprehensive document, but we can assist you in revising your 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. Don’t hesitate to contact the Kazi Law Firm today for all your estate planning needs.
