A last will and testament, often simply referred to as a “will,” is a legal document that outlines the distribution details of one’s possessions, including investments and other interests, upon their death. A codicil is used to update and amend a will. Codicils are typically utilized when a simple change to the original document needs to be made.
When Should I Write a Codicil?
A codicil changes certain provisions within a will. It is usually used to make minor updates to certain items and not change the entire document. A codicil can be used to make additions, clarifications or revocations to an existing will.
Examples of when a codicil may be used, include:
- Adding an additional beneficiary, such as a new grandchild;
- Adding a newly acquired property, for example, a new vacation property;
- Removing a property that was sold;
- Removing the name of someone that predeceased you; or,
- Changing the executor.
While codicils usually do not have content limits, it is a good idea to implement a codicil when there are brief and simple updates that ultimately clarify the meaning of an individual’s last will and testament.
When Should I Write a New Will?
If there are substantial changes in one’s life and they wish to make significant updates to an existing will, then it may be best to simply re-write the existing will. It is a good idea to review the existing will line-by-line to determine the updates and changes to be made and then discuss with your estate planning attorney.
While removing and revoking the interest of someone listed in the original will can be done with a codicil, it is often recommended to draft a new will instead. If a disinheritance is done via codicil, then the original will and codicil are public and thus may raise conflict with the disinherited.
No matter what the update in the codicil may be, the content of the will that the codicil is updating will be accessible and public, so, it is a good idea to consider whether you want to make changes public or not. By drafting a new will, it avoids future conflict of the surviving heirs and eliminates the question of who may see your previous intentions of an out-dated will and last testament.
Examples of when a new will should be drafted, include:
- Revoking the interest or a beneficiary;
- You want to keep the contents of the “old” will private;
- Creating a new trust or making updates to an existing trust; or
- Several codicils already exist.
Creating or updating trusts can be a complex process and therefore it is often suggested that a new will be created when trusts are involved. Also, if several codicils are already attached to a will, it may cause confusion and delay in the distribution of assets. Thus, it may be best to incorporate the previous codicils and make any other changes by drafting a new document.
The ultimate goal in estate planning is to make clear your intentions of property distribution upon your death. With this goal in mind, a new document may need to be drafted to achieve clarification with minimal conflict.
What Happens If I Don’t Have a Will?
Dying intestate means to die without a will. When a person dies intestate, typically the laws and probate code of the state where the individual lived dictate the distribution of assets upon their death.
After a person dies, their estate passes through probate court. The length of time of the probate court process can differ significantly depending on whether the individual had a will or died intestate.
If there is a will, the court will authenticate the will and distribute property according to the decedent’s last wishes. If however, the person dies without a will, the probate court process may take much longer to determine the heirs, if any, of the property left behind by the decedent.
Intestate distribution varies from state-to-state, however, it generally follows this order:
- Spouse (in some states, Domestic Partner);
- Nieces/Nephews; and,
- Other Relatives.
If there are no living relatives, then the state typically inherits the estate.
Should I Call an Attorney If I Need to Update My Will?
Drafting a will or updating it with a codicil are important life matters. An experienced will attorney can assist you and streamline the process. Each state has its own laws regarding the handling of estates. Wills and estates lawyers are aware of your state’s laws and will advise and guide you in drafting the legacy you choose to leave behind.
Planning ahead and making decisions about the future of your estate are difficult, yet, extremely important matters that everyone should consider. It is important to discuss your estate plan with an attorney as soon as possible. By creating the documents you want, an estate attorney’s work, emotionally brings peace of mind and financially affords security to those you leave behind.