What is a Codicil? (And Why You Shouldn’t Do One)
Having an estate plan is important at every stage of life. Having a will makes the disposition of your assets at your death much easier for your loved ones. Even with minimal assets, a will is important. Just as critical to having an estate plan are regular reviews and updates as your circumstances change. I am often asked if changes can be made to a will. If the testator (the person writing the will) is alive and mentally competent, they can make changes to the will. However, I am asked just as frequently if changes can be made to a will by a codicil. The answer I provide is always the same, technically yes, change can be made with a codicil, but I would never recommend using a codicil to make changes.
A codicil is a legal document that supplements a will. It can be used to make changes or replacements without including all the provisions of the original will. While a codicil does not include all the provisions of a will, it must be executed with the same formalities as a will. Since a codicil only supplements a will, it is irrelevant without the original will — which is why I never recommend creating one. To be valid and used after the death of the testator, the named personal representative must have both the original will as well as the original codicil. It is not unusual for one of the critical documents to go missing which renders the codicil useless and frustrates the intent of the testator.
The term codicil originated in the 15th century, which explains the concept of the codicil. Documents such as a will were difficult to produce and difficult to change. The actual production of the document was time consuming. How estate planning is practiced has certainly changed since the 15th century, but even as late as the 1980s, document production was difficult and time consuming, done mostly with typewriters. However, with the rise of the personal computer and word processing, the time it takes to create documents has been drastically reduced. Today, with word processors and document assembly systems, document production is significantly easier than it was, therefore the time it takes to create a codicil to a will is equivalent to the time it takes to create a new will.
Since creating a codicil to make changes to a will requires the same amount of time as creating a new will, and having a codicil requires maintaining multiple legal documents which increases the likelihood of loss, it is a better practice to simply create a new will. Of course, it is also critical that, if you are making changes to your estate plan, you thoroughly review your plan to ensure that it still meets your needs and that there are no other changes that should be made due to either a change in your personal circumstances or changes in the law.
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Hook Law Center: Hey, Dan and Riggs – I’m really excited about spring this year but now that the trees had buds on them, I seem to be itchy. Do dogs have seasonal allergies?
Dan & Riggs: Hi reader – that is a great question! Dogs and cats can develop allergies to pollen which are prevalent in the spring when the trees and plants bloom. Look for signs such as scratching, excessive licking, puffy eyes, head shaking, and hair loss as possible symptoms of seasonal allergies in a pet and then schedule time with your pet’s veterinarian to seek treatment.
