Creating a Codicil vs. Writing a New Will

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 What Is the Difference Between a Will and a Codicil?

A will and a codicil are estate planning instruments used in an individual’s estate plan. When an individual dies, an estate plan provides instructions regarding how their property will be managed and distributed upon death. A well-developed estate plan can have numerous benefits, including minimizing their loved one’s tax burden and reducing the need for probate court proceedings.

In legal terms, a will is a legal estate planning document allowing a person to designate how their property will be distributed upon death. The property that a will may dispose of includes an individual’s real and personal property. In general, in order for a will to be legally valid, the will must satisfy all of the following requirements:

  • The will must be in writing;
  • The will must be signed;
  • The will must be witnessed, typically by two non-interested parties; and
  • The person creating the will must have testamentary and mental capacity, meaning they must be both of legal age and mentally able to form a will.

In legal terms, a codicil is a written amendment or alteration to an already existing will. A codicil can involve minor changes or deletions to a will, such as updating the personal property to be distributed. However, in other cases, a codicil may also involve major alterations. For example, removing a named beneficiary from the will would be considered a major alteration.

It is important to note that to create a valid codicil, the same requirements must be met when the original will was drafted. In most jurisdictions, this means that the testator must still possess testamentary capacity, the codicil must be made in writing, the codicil must be signed, and the codicil must be witnessed, generally by two non-interested witnesses.

Examples of other common situations in which a codicil is typically utilized include:

  • Adding an additional beneficiary, such as adding a new grandchild;
  • Adding a newly acquired piece of real estate or personal property, such as a new vacation property or vehicle;
  • Removing property from the will that has been sold or transferred;
  • Removing the name of an individual in the will that predeceased the testator; or
  • Changing the designated executor for the will.

As can be seen, codicils are essential modifications to an existing will. However, before modifying a will, it is important to determine whether or not a valid legal will has been created and what specific type of will has been created.

Modifying an executed valid attested will may be more difficult and expensive than modifying an incomplete or holographic will. When modifying a will, an individual may write a new one and revoke their old one or add a codicil to their current one.

When Should an Individual Write a New Will?

As mentioned above, instead of executing a codicil, the other option for modifying a will would be to draft a completely new one to revoke the old one. Creating a new will in and of itself typically serves to revoke an older will, but this is not always the case. It is generally a better idea to expressly revoke an older will in writing or through some other legal action than to rely on creating a new one alone in revoking an old one.

Additionally, it is important to note that a will may not always be modifiable. For example, wills may not be modified by a person who holds a power of attorney of the testator. This means that an action on the testator’s part may only modify a will. Further, neither an executor named in the will nor the attorney who drafted the will has the power to modify an existing will. Only the creator of the will may execute a codicil to modify a will.

In general, if substantial changes in one’s life require significant updates and changes to an existing will, then it is typically always better to execute a new will. When determining whether executing an entirely new will is necessary, it is a good idea to review the existing will line-by-line to determine the updates and changes, if any, that need to be made.

Then the necessary changes should be discussed with one’s estate planning attorney to determine whether a simple codicil will cover the estate changes that need to be made or whether executing a new will is better.

Once again, removing and revoking the interest of a named beneficiary in the original will can be done with a codicil. However, it is often recommended to draft a new will instead. If a codicil is used, the original will and codicil may provide for a conflict to occur regarding which document should control the distribution.

No matter what the codicil is updating or modifying, it is important to note that the content of the will that the codicil is modifying will be a public record. This means that it is important to consider whether or not you want the changes being made to be public records.

Drafting an entirely new will avoids almost all future conflicts involving the surviving heirs and who is a beneficiary while eliminating any question about the intent of the will’s creator. Common examples of when a new will should be drafted instead of executing a codicil include:

  • Revoking the interest of a named beneficiary;
  • A wish to keep the contents of the old will private;
  • Creating a new trust document or making updates to an existing trust
    • Creating or updating trusts can be a complex legal process, and therefore it is often suggested that a new will be created when trusts are involved to avoid confusion regarding the distribution of trust assets; or
  • If several codicils already exist, which creates confusion as to the intent of the testator.

What Is A Will Contest?

It is important to understand how contesting a will occurs. Typically, unclear instructions for transfers of estate assets could result in a will contest or other legal problems. Will contests generally involve the beneficiaries disputing various terms of the will and challenging the validity or authority of the will and its provisions. Adding codicils to an existing will also open up disputes regarding the validity of the codicil and whether or not the original will should control the distribution of the estate assets.

A no-contest or anti-contest clause may be inserted into the original will to prevent beneficiaries from contesting the will by stating that they will forfeit any inheritance they have should they contest the will. Further, revoking any previous codicils or wills that conflict with the testator’s wishes in writing is also important to prevent will contests.

What Happens If a Person Dies Without a Valid Will?

If an individual does not have a valid will when they die, they will be considered to have died intestate. Dying intestate means that the person died without a will. When a person dies intestate, the estate and probate laws of their state and jurisdiction will control the distribution of their assets instead of their wishes and desires. As such, it is important to set up a valid will to have a say in how your assets are distributed upon death.

After a person dies, their estate will pass through probate court. The length of time of the probate court process will 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 testator’s wishes as outlined in the will. However, if 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. Further, the court costs to probate an intestate estate will likely be much higher.

Do I Need An Attorney for Help With Creating a Codicil or Writing a New Will?

If you wish to modify your will by executing a codicil, it is in your best interests to consult with an experienced last will and testament lawyer.

An experienced estate planning attorney will be able to help you understand your legal rights and options according to your state’s specific laws. They will help you determine whether or not executing a codicil or creating an entirely new will is in your best interests.

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