Even if you’ve already written a will, you may find that you need to make changes unexpectedly. You may want to revise your list of intended beneficiaries, your powers of attorney, and/or the guardian for your minor children. While you may be inclined to simply amend your will with a codicil, it is sometimes easier to draft a new will than to ensure that the changes you’re making in a codicil comply with California law’s many requirements.
Why You Might Need to Change a Will
People amend wills often and for a variety of reasons. These changes can be prompted by major events such as:
A falling out between friends or family.
If you no longer wish for a loved one to inherit, and your estate plan is based on a will rather than a revocable living trust, you may need to change your will to ensure your last wishes are honored.
A change in residence.
If you switch residences to another state or transfer significant assets across state lines, you will need to revise your will, so it is compliant with the law in your new home state.
A beneficiary has died.
It’s possible that a person you named to inherit assets dies or can otherwise no longer receive an inheritance.
A significant change in finances.
If you have recently received a large amount of money, gained assets, or lost assets, your will may need to be modified to reflect your changing financial status.
Changing a California Will
If you need to modify an existing will, you do not always need to replace it outright. Sometimes, you can simply make an alteration. California has a specific legal term for this sort of alteration called a codicil. Most often, a codicil takes the form of a separate document, affixed to the original will, explaining the writer’s desired changes.
A codicil can add, alter, or subtract information from an existing will. Codicils may also alter a will’s terms or conditions of disbursement. However, codicils must be legally binding and verifiable.
While a codicil can resolve minor discrepancies between an existing will and the writer’s new intent, it can be more trouble than it’s worth. Since a codicil must meet the same requirements as a will to be considered valid, any significant alteration increases the likelihood that your will could be challenged or found lacking by a California probate court.
Additionally, a codicil may inadvertently contradict the terms of the existing will—risking the possibility that both documents are found invalid by a judge, sending your assets into intestate proceedings.
The Requirements for Enacting a Codicil
The requirements for enacting a codicil are the same as for enacting a will. Whenever you write a codicil, you must:
- Sign your codicil in front of two witnesses
- Have both witnesses sign the codicil at the same time, either after they witness you signing the codicil, or after you have presented your signed codicil to the witnesses and acknowledged that the signature is yours
Both witnesses must be impartial—they should not be named beneficiaries to your will, and neither should they have any interest in its eventual resolution.
If your will and codicil were both drafted in your own handwriting, you may not require any eyewitness signatures.
However, handwriting a codicil without proper legal counsel drastically increases the probability of creating two conflicting, contestable documents.
Why Writing a New Will May be Easier
Estate planning attorneys often recommend that you avoid codicils and simply provide any desired alterations by writing a new will. While this may sound time-consuming, the process for enacting and verifying a codicil is the exact same as enacting and verifying a new will. A poorly worded codicil can also create conflict between the original will and its alteration.
Do You Need To Speak With An Attorney About Estate Planning?
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