Every adult’s estate plan should include a last will and testament. However, life can be unpredictable. A marriage, birth, or divorce could force you to alter your will—you might need to appoint a guardian for your newborn child or remove a beneficiary with whom you have severed ties. No matter your reasons, you might be inclined to create a codicil to amend your existing will. While a codicil might seem like a simple and hassle-free solution, it can cause more problems than it solves.
Understanding a Codicil
A codicil is a special legal document that amends a last will and testament. The codicil is, in essence, a written explanation of the changes. A codicil can be used to modify, clarify, or revoke the provisions of an existing will.
Codicils are often used to make minor alterations. If a prospective heir passes away prematurely, a codicil could be used to remove the name of the deceased individual and nominate another beneficiary in their place.
Common Uses of a Codicil
Changing the Executor
California allows individuals to appoint an estate representative, or executor, who will be responsible for initiating probate, paying creditors, and disbursing inheritances. An executor could be a relative, a friend, or an experienced attorney. If you believe that your current executor cannot manage your affairs, you can nominate a new estate representative in a codicil.
People need to change the beneficiaries in a will for a wide range of reasons. A codicil allows you to add new beneficiaries, remove existing beneficiaries, or designate contingent beneficiaries.
Choose or Remove a Guardian
You should always review your estate plan after any significant life event, including marriage, the birth of a child, or divorce. A codicil can be used to name a guardian for a minor child or suggest an alternate guardian.
Revise Your Last Wishes
You can use a codicil to make special requests for how your funeral or burial rites should be conducted, if you made no mention in your original will.
California’s Legal Requirements for Codicils
A will and a codicil are both legal documents. While you might want to use a codicil to make a minor alteration to your last will and testament, the codicil will still be subject to the same legal requirements as the will.
Legal Requirements of a Codicil
- It includes your full name and address.
- There is a declaration that you are of sound mind and understand that you are making a revision to your existing estate plan.
- There is a brief explanation of why you have altered your will, especially if you are planning to disinherit a named heir.
In order for your codicil to be recognized as valid, it may require the signatures of at least two witnesses, neither of whom may have an interest in the terms of the will.
The Disadvantages of Creating a Codicil
Estate planning professionals often advise clients against creating a codicil, in no small part because a codicil must be validated the same way as a will.
Additionally, a codicil can cause more problems than it solves. A codicil that is improperly written or inadvertently conflicts with the original will could be challenged.
Grounds for Challenging a Codicil
If your codicil conflicts with your will, a California probate court could either invalidate the affected portions of the will or invalidate the entirety of your estate plan.
Lack of Capacity
A disinherited friend or relative could contest your codicil, claiming that you were not in your right mind and did not understand the consequences of changing an existing estate plan.
Estate challenges often involve claims of undue influence, where the petitioner alleges that the writer of the will was pressured or coerced into making decisions they would not have otherwise made.
Why You Should Consider Writing a New Will
When California revised its probate code to allow for the use of codicils, it was largely because most people had handwritten wills, and re-writing an entire will by hand is a time-consuming and arduous task.
However, advances in technology have largely negated the need for a codicil. Wills can now be drafted on a computer, making alterations easier than ever.
An estate planning attorney could help you and your loved ones avoid unexpected contests by ensuring that your last will and testament is consistent and in compliance with California law.
Do You Need to Speak With an Attorney About Estate Planning?
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