What Are Codicils and How Do They Work?

What Are Codicils and How Do They Work?

A codicil is a legal document that serves to amend a last will and testament that has been previously executed by a testator. A codicil does not replace the prior will. Instead, it only amends a portion of the prior document.

How Is a Codicil Typically Used?

Amendments to a will that are made by a codicil might add or eliminate small or minor provisions in a will. An example of this type of use of a codicil is to change the executor named in a will. Alternatively, a codicil may be used to entirely change the majority of bequeaths or devises under the original will. This particular larger scale use of a codicil is rarely practiced, however. Testators in this latter instance are typically advised to prepare entirely new wills when the changes proposed are so major and sweeping in their manner, scope, and extent.

It is usually more prudent to prepare a brand new document and eliminate any ambiguity or confusion in interpretation with multiple competing estate-planning documents. It is no exaggeration that estate litigation can focus on nuances as specific as punctuation contained within the operative estate-planning documents.

What Are the Legal Requirements for a Codicil?

A codicil has the same requirements under the law as the original will. In order for a codicil to be legally valid in most U.S. jurisdictions, it must be:

  • signed by the testator
  • witnessed by at least two or three disinterested parties, according to the specific requirements for witnesses of the jurisdiction
  • prepared entirely in the handwriting of the testator if handwritten, or it must be printed or typewritten
  • prepared by an adult testator at the age of 18 or older

Additionally, the testator must be of sound mind when preparing the codicil.

How Do You Decide Whether to Use a Codicil or Create a Brand New Will?

A testator may decide to change or modify his or her will with an entirely new will, rather than preparing a codicil. The newly prepared will revokes all previous wills and codicils alike, as no prior estate-planning documents survive its creation and existence. Many trusts and estates attorneys and financial planning professionals advise their clients to do just that and create an entirely new document in order to eliminate any confusion or ambiguity in interpretations and inconsistencies. This especially holds true in today's modern technology-driven society, with computers that make word processing so efficient, easy, and fast. The costs of preparing a new last will and testament are relatively low when compared to the expense, time, and stress associated with protracted legal battles inside and outside a courtroom over ambiguities or interpretations in competing estate-planning documents.

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