Most people are aware that they should have an estate plan, particularly if they have a spouse and minor children. An estate plan allows you to decide how you want to live – and what you want to happen when you die.
Along with a Trust, a key component of many estate plans is a last will and testament. This document can be used to name beneficiaries, designate an executor, and name a guardian for minor children. If you want to amend your will, a separate document known as a codicil can be used. However, if you need to make anything other than minor changes, then the better course of action is usually to revoke your current will and execute a new one.
Daryl Reese Law provides comprehensive estate planning services for individuals and families throughout California. We work collaboratively with our clients to understand their needs and develop an estate plan that achieves their goals, from avoiding probate to minimizing taxes to providing for children. Reach out today to schedule a consultation with a member of our legal team.
What Is a Will?
A last will and testament – commonly referred to as a will – is a fundamental part of any estate plan. The primary purpose of a will is to designate heirs and beneficiaries. It can also be used to name an executor to initiate probate after your death, nominate a guardian for your minor children, or even set aside funds to care for pets. Separate legal documents – such as a power of attorney – can be used for other purposes.
A will does not have to be complex. It could be a holographic (handwritten) will, a statutory will, or a simple will. It may even be a pour-over will, which can be used in conjunction with a revocable living trust to transfer any remaining assets to your trust at the time of your death. In California, a trust-based estate plan is the preferred as a way to avoid probate. Forming a trust in tandem with a will can accomplish this goal.
However, if you die without a will, then your assets will be distributed in accordance with California’s intestate succession laws. This can often result in your assets being divided in a way that you would not want. For example, if you die without a surviving spouse or children, then your assets may go to surviving parents, siblings, grandparents, or more distantly related relatives – even if you did not have a relationship with them. Having a will in place can avoid this outcome.
To be valid under California law, a will must be written by a person aged 18 or older who is of sound mind. To finalize the will, it must be signed in front of at least two impartial witnesses. These witnesses must then sign the will after they have seen you sign the will or after you acknowledge your signature to them. A handwritten will does not require any witnesses.
What Is a Codicil?
A codicil is a legal document that amends a last will and testament. In essence, a codicil is a written explanation of the amendment. It can be used to change, clarify, or revoke the provisions of an existing will. A will cannot be updated by crossing out words, making notes, or adding handwritten modifications.
Codicils are often used to make minor modifications to the will. For example, if an heir passes away before the testator (the person making the will), the codicil could be used to remove the name of this heir and put another beneficiary in their place. Other common uses of codicils include:
- Changing the executor or estate representative: This person is responsible for starting probate, gathering your assets, paying creditors, and distributing your assets. If you believe that your current executor cannot properly manage your affairs – or if you simply want to make a change – you may nominate a new executor in a codicil.
- Choosing or Changing a Guardian: in a will, parents of minor children often nominate a guardian. If you have a child after drafting your will or simply want to pick a new guardian, you may use a codicil to do so.
- Updating beneficiaries: many people set up an estate plan when they are relatively young – such as when they become parents. Over time, their preferred beneficiaries may change. A codicil can be used to add new beneficiaries, remove existing beneficiaries, or designate contingent beneficiaries.
- Revise last wishes: a will can be used to specify your last wishes – such as the type of funeral or burial you would like to have, and whether you want to be buried or cremated. If your wishes change or you never noted your last wishes in your will, you can use a codicil to make an update.
Whatever you use a codicil to do, it is important to remember that it amends a valid last will and testament. It cannot take the place of a will. When a person dies, both the original will and the codicil will be submitted to the probate court. Both will be reviewed by the court, and will then be the basis for estate administration and the distribution of assets.
A codicil is subject to the same legal requirements as a will. As such, you must be at least 18 years old and of sound mind. It should include a declaration that you are making a revision to your existing will, along with the date of the will that you are modifying. It should also specify the provision that is being modified, and provide a brief explanation of why you are making these changes. This is particularly important if you are making a modification that may be contested – such as disinheriting someone.
Unless it is handwritten, a codicil must be signed by two witnesses who do not have an interest in the terms of the document. As with a will, the purpose of having a codicil witnessed by two disinterested people is to provide a safeguard and make sure that the document was signed without undue influence or when the creator lacks capacity.
Should You Use a Codicil to Modify Your Will or Draft a New Will?
A codicil may seem like an easy and cost-effective way to modify your will. Instead of writing a whole new will to change one tiny provision, you can just add a document to the will. Unfortunately, codicils often create legal headaches and can result in both your will and the codicil being challenged after you die.
A codicil must be validated just like a will. This can present an opportunity for someone to challenge the codicil, even if the will is otherwise determined to be valid. A challenge may be based on:
- Lack of capacity: as with a will, a person must have legal capacity to draft a codicil. A person who was negatively affected by the codicil may claim that you were not of sound mind when you wrote it.
- Undue influence: a common ground for contesting a will is undue influence. This means that the testator was pressured or coerced in some way into making a will. This same claim can be used to contest a codicil.
- Legal technicalities: if your codicil was not properly written, it could be stricken. Alternatively, if it conflicts with your will in some way, a court could potentially invalidate the affected portion of the will or the entire last will and testament.
For example, consider a situation where Mary made several changes to her will to reduce the inheritance of her son John and to increase the inheritance of her daughter Jane. Mary did this because Jane lives near her and has provided countless hours of care for her as she ages. John lives across the country and rarely calls or visits. When Mary passes away, John learns that his mother changed her will through a codicil. He believes that Jane influenced their mom so that she could personally benefit. He challenges the codicil, and the siblings spend substantial time and money in litigation over the will and codicil.
In the past, most people wrote out their wills by hand. Codicils were an easy way to make a change to a will without starting over from scratch. Today, most wills are drafted on a computer, which means that making a change is fairly simple. An estate planning attorney can readily make the necessary changes – and talk you through the process to reduce the likelihood of your will being contested.
In some situations, it makes sense to use a codicil to make a relatively minor alteration to your will. More significant changes – or ones that are likely to lead to a will contest, such as disinheriting a loved one – should be handled through a new will. The original will is revoked, and a new will can then be executed. This reduces the risk of confusion and of litigation over the validity of the codicil.
Ultimately, your estate plan should be about your wishes, including how your assets are distributed. If you aren’t careful, using codicils to amend your will can lead to an outcome that you never wanted. Consulting with an experienced California estate planning attorney can minimize the potential that your will is invalidated.
How Our Law Firm Can Help
Few people want to think about becoming incapacitated or dying, yet it is a reality that we all must face. Having an estate plan in place can ensure that your wishes are followed, from who you want to inherit your assets to how you want to be buried. As part of this process, the careful drafting of a last will and testament – and any associated codicils – can help to avoid expensive litigation.
At Daryl Reese Law, we work with our clients to create highly individualized estate plans based on what YOU want. We know that no two clients are alike, and that a one-size-fits-all solution is rarely appropriate. Our law firm will help you understand California estates and trusts law and your estate planning options before guiding you through the process. To learn more or to schedule a consultation with a California estate planning attorney, give us a call at (707) 858-5000 or fill out our online contact form.
- Intestate succession: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=6401&lawCode=PROB
- Valid: https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=PROB&division=6.&title=&part=1.&chapter=2.&article=
- Codicil: https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PROB§ionNum=88.&highlight=true&keyword=codicil