Creating a Codicil vs. Writing a New Will

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What is a Will?

A will, also called a "last will and testament," is the statement of one's final wishes. The person who makes the will, known as the testator, usually names others to administer the estate and to distribute property to beneficiaries. In general, the purpose of a will is to:

After the testator's death, the executor may offer the will into probate court for the probate process. An executor will address any creditors’ claims, pay appropriate estate taxes and debts, and ensure beneficiaries get property disbursements as will requires.

What's the Difference Between a Codicil and a Will?

A codicil is simply an amendment to an existing will. A codicil may involve only changes or deletions to a will, or it may involve major alterations. The original will and the subsequent codicil(s) are interconnected.

A codicil must conform to the same requirements that the original will had conformed to. For example, in most jurisdictions, a valid will must be signed by the testator in front of two witnesses. Therefore, a codicil would likewise have to be signed in the presence of two witnesses.

Codicils May Create Legal Ambiguities

Throughout the course of a lifetime, an individual may amend his or her wishes concerning estate planning and property disbursements. As a result, many codicils may be produced. This can lead to legal complications upon the death of the testator.

When many testamentary writings are involved, a probate court may need to determine whether a codicil is actually an amendment to an existing will or a completely new will.

Why Should You Consider Making a New Will Instead of a Codicil?

The solution seems to be simple: making a new will is an option. The new will has to be dated and signed, and conform to appropriate legal standards (e.g. signed in the presence of two witnesses). A new will must also completely revoke the preceding will as well as any and all preceding codicil(s). Making a new will even for small changes will eliminate ambiguity and potential unfavorable interpretations of testator's wishes.

Why Seek an Attorney's Advice?

An experienced estate planning attorney can help you decide whether to draft a codicil or to make an entirely new will. In either case, certain technical requirements must be followed in order to create a valid testamentary document.

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Last Modified: 09-06-2013 01:59 PM PDT

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