If you think a codicil sounds like an ancient, extremely formal document, you’re totally wrong! It’s basically just an amendment to your will that you attach directly to the back of your original will. Easy peasy! Just make sure to follow your state laws for codicil requirements and only get one if you have minor amendments—a major overhaul may necessitate a new will. So, without further ado, let’s get into everything you need to know about the valuable tool that is a codicil.
What is a codicil?
A codicil is a way to change your will without having to create a new one. It’s like an amendment to a will. It generally does not revoke the original; just changes certain aspects of the original will. Creating a valid codicil generally requires following the same legal requirements that you were required to follow for your original will, but always check with your state laws to ensure that there aren’t any additional requirements. Codicils generally are required to be in writing, signed, and witnessed.
When to use a codicil
A codicil may be useful for minor changes to your will. A complete overhaul of the will may be better suited for a revocation and a new will altogether. It’s best to speak with an estate planning attorney to determine which option is right for you. Here are some examples of when a codicil may make sense:
- Changing or updating beneficiaries for certain asset distributions
- After there have been marriages, deaths, divorces, or births that change certain provisions in your will
- Updating your will’s executor (who is in charge of administering your will when you die)
- Updating your will’s trustee (a person acting on behalf of the beneficiaries in your will)
- Clarifying certain provisions if they’ve proved confusing or become contradictory somehow
- Adding or removing certain assets that may have changed
- If you wish to remove or alter a specific clause in your will, you can use a codicil to revoke or change just that part.
How does a codicil work?
A codicil is a written legal document that makes a change to your original will. You will need to identify what exact changes you want to make in your codicil, such as switching around beneficiaries, altering the distribution of certain assets, or changing executor, etc. Codicils generally require the same formalities that were required by your state law for the original will, such as witnesses.
A codicil typically should be attached to the original will and will function exactly like the original would when you die. For example, if your will executor has to go through probate, they will take your will and codicil to probate court to initiate the process of distributing your estate. The codicil will be a key part of making sure your assets get distributed properly.
Legal requirements for a valid codicil
The laws governing codicils are dictated by each state. What is required in Delaware may not be required in Montana, and so on, so forth. It is important that you follow your state’s law regarding the execution of a codicil to ensure it is valid.
Here are some general guidelines that most states require for a valid codicil:
- Mental capacity: The person creating the codicil should also be of sound mind and memory, meaning that they understand what they are creating and signing off on. They must also not be under any undue influence or duress at the time of signing.
- Clarity of terms: The codicil should be specific, straightforward, and lack any question of meaning. If the codicil is ambiguous, there is a chance that it could be challenged or thrown out.
- In writing: The codicil should be in writing, meaning you shouldn’t verbally express your wishes to someone and expect that to be a valid codicil.
- Signed at the end: The person creating the codicil should sign the codicil at the end of the document to indicate that they agree to the terms. Any terms written underneath the codicil-maker’s signature could be considered invalid.
- Witnessed: Codicils are generally required to be witnessed by two competent, adult witnesses. Their signatures serve to verify that the testator had the required mental capacity and was not under duress at the time of signing. Some states require that these witnesses also be disinterested, which means that they are not also benefiting from the will they are witnessing.
- Proper signing ceremony: Every state has its own requirements for how the will should be signed. Generally, states want the codicil-maker and two witnesses to all sign within the presence of one another.
- Dated: While it may not be a formal requirement, it’s a good idea to make sure that the codicil is dated, so as to indicate that it is a codicil and created after the original will.
- Intent to create a codicil: A codicil should also make clear that the document is meant to amend a portion of the original will, so this generally means referring to the original will and/or making a statement that the document is a codicil.
Do you need to notarize a codicil?
Most states do not require that a codicil is notarized, however, it’s best to check with your state laws to make sure. However, though generally not required, notarization can be a great way to add an extra layer of protection to your codicil to deter any questions of fraud. Also, having the codicil notarized can help streamline the probate process because it eliminates the need to contact witnesses if the will goes to court. During the notarization process, the codicil-maker and two witnesses will all sign the document in front of a notary public who verifies each person’s identity and ensures each person understands what they are signing. It is harder to later claim that the codicil wasn’t actually signed by the creator or that they weren’t of sound mind when it is notarized.
Final thoughts
A codicil is good for small changes to your will. Think of it like an amendment to the original will—you follow the same rules, and you attach the codicil to the original will. It will basically be treated like one whole will when you die (as long as they’re both valid). Make sure to follow the same laws that you did for the original will creation, such as signatures and witnesses. And don’t forget to speak with an estate planning attorney to determine if a codicil is right for you!
Katherine (Kathy) Bakes is the founder and managing attorney of Bakes Law LLC. Her eleven years of practice involves all aspects of family law, including the formation of prenuptial and postnuptial agreements, divorce and legal separations, child custody, child support, and visitation agreements, spousal support and financial settlements. Kathy also engages in the practice of estate planning including the formation of wills, revocable and irrevocable trusts, durable powers of attorney, health care proxies, HIPAA authorizations and living wills. Kathy is a member of both the Connecticut and Massachusetts state bars after receiving her Juris Doctorate degree from New England Law | Boston. Kathy lives in Southport, CT with her husband and toddler. Outside the office, Kathy enjoys playing the piano and teaches music education to students of all ages.
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