The purpose of estate planning is to make clear your wishes for what happens to everything you own and control after you're no longer here. Executing a last will and testament is the keystone of any estate plan.
Even though estate planning looks to the end of life, most estate planning attorneys agree that it's never too early to start.
With that in mind, it’s particularly helpful to know you can make changes to your estate planning documents at any time, either by tearing up the originals and replacing them with new ones — or by making amendments. These changes to an existing will are made with a codicil.
The word "codicil" comes from the Latin codicillus, which means “a short writing.” The purpose of a codicil is to change a particular provision of an existing will while leaving the remainder of the original will intact.
The purpose is not to restructure an entire estate plan or to create, in effect, a new will, but rather to make a small change or changes. A codicil is appropriate to:
deal with assets not specifically mentioned in your existing will;
specify the name of a family member or other beneficiary who should inherit it; or
merely update the name of a beneficiary or a personal representative (the person who will administer your will) because such person underwent a name change as a result of, say, a marriage or divorce.
To add a legally valid and binding codicil to your existing last will and testament, you’ll need to:
commit the changes in writing into a new document;
sign the document in front of two witnesses; and
have the witnesses sign the document, along with a statement that they believe you are of sound mind and are acting of your own free will.
Once drafted, it is critical to keep the codicil with the original will so that both can be read and interpreted together.
This is important because your original will won't (and, by definition, can't) mention that a codicil exists. Therefore, your personal representative may not know there is a codicil without such physical proximity.
Some states allow handwritten changes on the original will to amend the will's terms. However, the particular requirements for a handwritten change to be valid will vary from state to state.
For example, some states require the handwritten changes to be in the will maker's writing, as well as signed, dated, and double-witnessed. Other states may disregard the handwritten changes, even if they are minor changes.
Still others may find that the entire will is invalid because the handwritten notes cast doubt on the will maker's intentions. And that takes us to the question ...
Every will must be reviewed by a probate court before the deceased's wishes can be carried out. Next, the heirs and beneficiaries are notified. At either juncture, the will's validity may be called into question, and state laws vary on what may be a successful challenge to a will.
If you have had a major life change, such as a marriage or divorce, a death in the family, or the birth of a child or grandchild, it is probably more appropriate to execute a new last will and testament, as opposed to a codicil.
A new will also may be a good idea if you've already made a series of codicils to your old will.
By consolidating the original will and all existing codicils into one new legal document, you'll make it easier for your personal representative to follow your directives.
In addition, as mentioned above, your original will, by definition, does not mention that a codicil exists. So to make absolutely certain that your new beneficiaries are protected (and likewise, that those you have disinherited do not benefit), it would be prudent to create an entirely new will, thereby revoking and superseding any and all previous wills.
An attorney with experience in estate planning can advise you whether it is best to simply execute a new will or to amend it with a codicil.
Because of differences in state law, if you're looking to make a change to your will, it's advisable to seek out a law firm with expertise in estate planning — or simply an estate planning attorney well-versed in the laws of the state where you live.
