What is a Codicil to a Will?

Modifying Your Will With a Codicil
Life changes- a new child, marriage, divorce, death of a family member- can change what you want and need to do in your estate planning.  But that does not necessarily mean that you need to re-do everything each time something changes in your life.  A "codicil" is a document you can prepare after you have a legal will in place if you need to change something about your original will and do not want to start the whole estate planning process all over again.  Your estate planning attorney should be able to advise you about whether you can accomplish what you want by using a codicil.
What are the Requirements of a Legal Codicil in Massachusetts?
​For a codicil to be valid, it must meet the same requirements as the original will, which that it must be:
  1. In writing;
  2. Signed by the person making the will (who must be legally competent to make a will at the time of signing); and
  3. Signed by two other individuals who witnessed either the initial signing of the will or a later signed acknowledgment by the person making the will.

Like your will, in order for the codicil to be "self-proving," it should also meet the same requirements as a will, in order to avoid the need for anyone to attest to your codicil in probate court.  These requirements, in addition to the above, are that the witnesses specifically attest to the fact that the person making the will is at least 18 years old and of sound mind and body, and that the witnesses signatures are themselves made before a notary public.

Also, just like the requirements to make a will in the first place, a person must be legally competent to execute a valid codicil.  Competency to execute estate planning documents in Massachusetts  is not a high standard.  The person must simply be able to understand his or her relationship to the people named in the will or codicil, and to comprehend the nature of the act of making a will or codicil.  In other words, the person making the codicil does not have to have a firm grasp on the details of the document or the technical terms and mechanics, but must understand that he or she is making a decision to leave assets to certain people, and that he or she understands their relationship with those people.  

Why Use a Codicil?
If something changes about your estate plan that is significant, you may be better served by having a lawyer review all of your documents and determine how to best meet your new estate planning goals.  If it is relatively simple, however, like changing the bequest for specific assets, modifying who your personal representative (formerly executor) will be, or adding heirs, a codicil is simpler and therefore less expensive to prepare than rewriting your original will.
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A valid codicil, moreover, can in some instances cure any signing defects in your original will, if it meets all of the requirements (see above) for a valid will in Massachusetts.
When Should You Re-Write Your Estate Planning Documents Instead of Simply Using a Codicil?
In general, any situation that causes you to want to change more than one or two specific things in your will should prompt you to at least consult an attorney, and potentially consider an overhaul of your estate plan.  Some of these situations include:

If you have a major life change, like a divorce or remarriage, especially if you or your new spouse already have children, you are best served by having an attorney revise your entire estate plan.  This is because a change in marital status changes so many different pieces of most people's estate plans that you risk overlooking something important if you try to make changes with a codicil. 

If you come into a substantial inheritance, or otherwise significantly increase your assets, it is important to at least consult an attorney to make sure you are still as protected as you can be from estate tax liability.
Summary of Life Events That May Require Changes To Your Estate Plan
Here is a quick guide to common life events and how they may change your estate planning needs.
  • Marriage: Whether you change your will or not, the law will require a certain portion of your estate go to your spouse, but if you have made specific bequests to others (siblings, charities, etc.), you should check to make sure the allowance for your spouse will not affect those bequests, if those are still your wishes.  Most people also want to update their durable power of attorney and health care proxy once married to designate the new spouse.
  • Divorce: This will almost certainly change who you have identified as power of attorney, health care proxy and/or personal representative, and likely other arrangements you have made, including arrangements for your children.
  • Inheritance: A substantial inheritance may require you to rethink your estate plan entirely in order to minimize estate taxes. 
Want to Learn More?
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Read more about these estate planning topics on the slnlaw blog:
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About slnlaw

We are a Massachusetts law firm focused on business law, employment law, and estate planning. Our team includes attorneys with large law firm experience, public service experience, experience working with small businesses on a wide variety of matters, an attorney with an advanced degree (LLM), and a former clerk to the Massachusetts Supreme Judicial Court.  Attorney and founder Emily Smith-Lee has been named to the Massachusetts Super Lawyers list every year since 2013, and was recently named a 2018 Lawyer of the Year by Massachusetts Lawyers Weekly.  Our lead estate planning attorney Jenna Ordway has been recognized as a top estate planning attorney, and has published a book about estate planning in Massachusetts.
 
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