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Friday, March 25, 2022

Reasons to Avoid a Codicil

You’ve fulfilled your estate planning responsibility and have a well-drafted Last Will and Testament in place.  Nice job!  But what happens when there is a big life change (loss of a loved one, new marriage, birth of grandchildren, won the lottery, etc.) and you need to update or change your Will?  One option is to execute a Codicil to amend your Will.   A codicil is a legal document that acts as a supplement to your last will and testament.  In it, you can make changes to your will without having to rewrite your entire original will document.  Common changes made using a codicil include changing your Personal Representative, changing your beneficiaries, changing gifts to beneficiaries, and changing your guardian selection (if you have minor children).  Sounds pretty simple, but there are several reasons why using a codicil may not be your best option.

First and foremost, a Codicil needs to ensure that all articles that are affected by the change you are making are updated.  If you miss an article, that can create a contradiction in the Will that may make the probate process more complicated.  For example, lets say that you have a dear friend that you are leaving a valuable piece of jewelry too as well as part of your residuary estate.  That friend predeceases you and you decide to leave that valuable piece of jewelry to a different friend.  You execute a codicil doing so, but do not make any changes to the article addressing your residuary estate.  Now the purpose of executing a codicil (to account for your friend’s passing) as not been fully accomplished.  The likelihood of missing an article like this is much less if a new Will is redone.  Creating a new will is better if you want to make an important or comprehensive change to the structure of your will, or the impact of your changes would be unclear if you only used a codicil.

Second, there is no procedural benefit to using a Codicil.  Just like a Will, a Codicil needs to be signed in front of two disinterested witnesses. 

Third, you still need that Last Will and Testament.  The Codicil only changes a portion of your Will so now, instead of needing just one original document to be kept safe, there are at least two (or three or four or more, depending on how many codicils you execute).  The original of your Last Will and Testament as well as every Codicil would need to be probated.  It is much simpler if there is just one updated Will.

Fourth, the use of computers has greatly diminished the need for Codicils.  Codicils were much more popular when a lawyer would have to retype an entire Will on a typewriter (or even rewrite by hand).  Now, if you utilize the same attorney, they can pull up your Will file, make the necessary changes, and just re-print.

On a side (but related) note, it may be tempting to make handwritten changes on your Will to try and avoid utilizing an attorney.  Don’t do this.  There are necessary procedural rules for this type of change plus it often can lead to your will being contested in court which not only extends the probate process but can end up costing far more than simply updating the will ever could.

If you have any questions regarding estate planning, codicils, or Wills, please feel free to contact the Law Offices of Samuel S. Reidy for a free consultation.

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