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A codicil to will is a document that is used when changes are being made to an existing will.

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What is a Codicil? 

A codicil to will is a document that is used when changes are being made to an existing will. This document is used in cases where the client does not want to completely replace their will, but they want to amend it to make relevant changes. The codicil can change one aspect of the will or many different things.

This legal document to change a will requires a lot of information about the existing will and the party that it belongs to. The codicil will need to be signed by the person making the changes and the owner of the original will in order to be put into place. A witness will be required to sign as well. In some states, codicils must also be notarized by a notary public.

The codicil to will is an important legal document that requires accuracy and an understanding of will procedures. Additionally, codicil laws and requirements vary by state. Some regions allow handwritten codicils, while others do not. Seeking legal advice, and hiring legal counsel is typically used for a codicil to will, as it can be a lengthy document that requires an understanding of the laws that apply to wills.

The Essential Guide to Codicils

By the FormSwift Editorial Team
June 14, 2018

Introduction

Here is our guide to codicils. A codicil is a legally binding amendment to a will. It can add, further explain, modify, or revoke portions of a given will. In this guide we walk you through common scenarios that require a codicil, determining whether or not you need one, when you cannot amend your will, and various ways to implement a change.

Common reasons for a codicil

There are many reasons to amend a will. Many involve changes to your life and family structure. Some of the more common reasons come after the following:

  1. The death of a beneficiary
  2. Marriage
    • This is especially important for same-sex couples, as distribution rights for same-sex couples vary by state. Clearly outlining same-sex partnerships and distribution rights will help your beneficiaries avoid legal complications in the event of your death.
  3. Common law marriage
  4. A domestic partnership
    • If you are in a domestic partnership and do not intend on getting married, but want your partner to inherit your assets, you must make sure to include that in your will.
  5. Divorce
  6. Birth of a new child.
  7. The acquisition of stepchildren
    • In general, step-children do not have inheritance rights unless they are included in a will

You may also change a will for financial reasons. Those include:

  1. Moving assets to a trust
  2. Transferring assets to new generations of family members
  3. Reducing tax consequences (inheritance and capital gains)
  4. Moving to a different state
    • Distribution laws vary by state. Therefore, if you move, it is imperative you familiarize yourself with your new state’s distribution laws and amend your will accordingly.

When should you use a codicil and when you should make a new will?

As mentioned above, a codicil changes a portion of the will. If your will requires substantial revision, you may need to create an entirely new will. Here are some tips for determining whether you need a codicil or a new will:

Codicils are appropriate for minor changes, such as adding or deleting certain provisions, adding a new paragraph, updating the name of a beneficiary, etc. You may have multiple codicils throughout your life for different changes, however, if you've filed many codicils, it might make sense to create a new will that combines all of the changes to simplify and clarify the document.

  • Remember, a codicil requires the same verification procedure as a new will.

If you plan to substantially change a will, you should consider making a new one. A new will revokes the original document, so make sure the new document contains all of the new provisions as well as the old ones you wish to keep intact. Moreover, when you create a new will, be sure to destroy all copies of the old one.

Changing a will if a beneficiary dies

It is important to keep your last will and testament up to date. Therefore, if one of your beneficiaries dies, you must update your will to specify who will receive the correlating assets. If you do not, and your will is out of date, the state may allocate those assets for you.

Changing a will with children

If you have children and plan on having more, consider including language in your will that accommodates those plans for a new beneficiary. The easiest way to do this is to avoid limiting your references to existing children. Instead, include general language like “children,” “descendants,” etc.

Here is an example sentence:

"I give all my tangible personal assets, and insurance policies to my children to be divided among them in equal shares by my executor."  

For children with disabilities, depending on the challenges your child faces, it may be necessary to include additional provisions and protections. In worst cases, depending on the individual, courts may determine your child is unable to independently manage their inherited assets and appoint someone else to do so.

Therefore, if you are the parent of a child with special needs, we recommend you establish a discretionary trust, which allows you to determine how the assets you leave are allocated.  

Changing a will after a divorce

In the event of a divorce, your will is the first estate planning document you should amend. The portions of your will dictating the distribution of personal property (i.e. non-marital property) can be altered immediately. Joint marital assets, on the other hand, likely cannot be altered in your will until after the divorce is finalized and a judge has divided those assets.

Conclusion

Amending a will, via codicil, is a common practice. We hope this guide details how to do so, when to do so, and when not to do so. Regarding the latter, in many cases, a new will may be a better option than a codicil. Either way, we hope this guide provides you will what you need to determine how to amend your will now, or in the future.

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