Codicil FAQ - United States


Codicil
What is a codicil?

A codicil is an amendment to your Will. A codicil is used when you are happy with the contents of your Will but want to make minor changes. It leaves your original Will intact but makes specific changes, such as adding or deleting a executor. A codicil is signed and witnessed (executed) in the same manner as a Will.

What is a Will?

A Will is a legal document stating how your money and property will be distributed after you die. Most, but not all, of your property can be disposed of in a Will. The proceeds of a life insurance policy naming someone as a beneficiary or property owned jointly with someone else cannot be disposed of by a Will. A Will also allows you to state a preference for the guardian of your minor children.

When could I use a Codicil?

A Codicil can be helpful for making a few simple, unambiguous changes to your Last Will. However, it remains critical that your intentions will be clearly understood. It is easy to imagine that writing one codicil after another for your Last Will can be a puzzle for a judge to sort through after you are dead. When your changes are many, overlapping or complicated then it is easy for you to have overlooked some detail or contradiction. If you think that your intentions could be misunderstood by a judge then don't take the chance. Write a new Last Will. You might use a Codicil for the following circumstance:

  • If you want to change your executor; or
  • If you want to change a guardian.
When should I write a new Last Will?

A Codicil is not always a good choice when you need to make changes to your Will. If complex changes need to be made then your intentions may be clearer if you start over and write a new Will. It is especially important to write a new Will for the following events:

  • You get married (a change in marital status may void your Will);
  • You are unmarried, but have a new partner;
  • You want to add or remove a beneficiary;
  • The amount of money and property you own significantly changes;
Parties Named in the Codicil
What is a testator?

A testator is the person who is making the will. A female testator is often referred to as a testatrix.

What is a beneficiary?

A beneficiary is a party who is receiving a gift from the testator. Beneficiaries can be people or organizations.

What is a Legatee?

A Legatee is someone who receives a gift or benefit or legacy in a Last Will. Any individual, firm, trust, partnership, unincorporated association, corporation, or a governmental body may be a legatee.

What is an executor?

An executor is the person who will be carrying out the terms of your (the testator’s) Will and administering your estate. An executor is sometimes referred to as a personal representative.

The Executor
What does an executor do?

An executor or personal representative is responsible for collecting the assets of the estate, paying any debts of the estate, paying state and federal taxes, and distributing the assets of the estate in accordance with the directions of the Will.

Whom should I select to be my executor?

Administering the estate can be complex, time-consuming and stressful. Ensure you select someone you trust, who will be able to handle your financial matters prudently. Your executor does not need to have any legal expertise. An executor can always hire a lawyer should the need arise. Many people select their spouse or an adult child to be their executor. Also, people often choose an individual who will be receiving a substantial amount of property to be their executor. In this way, the executor will want to ensure that the property is distributed properly.

Can I choose anybody to act as my executor?

Usually you can choose anyone to act as executor except a minor or a convicted felon. Additionally, some jurisdictions place restrictions on non-resident executors (for example, some states specify that all non-resident executors must be related to you).

Can my executor be a beneficiary in my Will?

Yes, your executor can be a beneficiary in your Will.

Witnesses
What is an “Interested Witness”?

An ‘interested witness’ is a witness that will receive a gift or devise under the Codicil or Will. No attesting witness is interested unless the witness is devised or bequeathed some portion of the testator's estate.

Can one or more of my witnesses be a beneficiary in my Will?

No. In almost all cases a probate judge will invalidate any gift given to a witness unless there are the required minimum number of additional uninterested witnesses who are not beneficiaries. Where a gift has been given to a witness, it will not automatically invalidate the Will, however the gift will probably be reduced to what the witness would have received if the testator had died intestate or to what the beneficiary would have received under the Will, whichever is LESS. A witness should also not be the spouse of someone receiving a gift under the Will.
IT IS BETTER TO BE SAFE. Always select witnesses that will NOT receive a gift under your Will.

Where a beneficiary is receiving a gift under the Last Will but is not named directly in the Codicil can this beneficiary act as witness to the Codicil?

That depends. For example, if the Codicil is making a change to the Will that ultimately affects the residue of the estate and the witness is sharing in the residue then the Codicil is affecting a gift to the witness. The gift to the witness may be void. AGAIN IT IS BETTER TO BE SAFE. Always select witnesses that will NOT receive a gift under your Will or any of its Codicils.

Signing
What does "execution" of the Last Will or Codicil mean?

Execution of the Last Will or Codicil is the act of signing and witnessing the document by the testator and the witnesses. Depending on the jurisdiction, valid execution may require the following:
a) that the Last Will and Codicils must be in writing,
b) that it contains a statement at the end attesting that it is your Last Will,
c) the date and place of signing,
d) that you signed it in the presence of witnesses,
e) that the witnesses then also signed it in your presence, and
f) in many jurisdictions that the witnesses signed in the presence of each other.

What is the Affidavit for?

The notarized affidavit is used to make a Last Will or Codicil self-attesting. A Last Will or Codicil can be made self-attesting or self-proving by having each witness swear an oath and sign an affidavit in front of a notary. This removes the requirement of having one of your witnesses go to court to verify that the Last Will or Codicil was properly executed.

What is a Self-Attesting Affidavit?

Normally a witness will be required to testify in probate court that the Last Will or Codicil was executed properly. Alternatively, this requirement may be satisfied by having each witness swear an oath and sign an affidavit in front of a notary. This removes the requirement of having one of your witnesses go to court to verify proper execution.

What is the difference between an Attestation and a Affidavit?

Attestation and Affidavit are two different things. A notarized affidavit is used to make a Last Will or Codicil self-attesting. Attestation is simply the act of witnessing a document at the request of the person who made the document.

Do I need to notarize my Last Will for it to be legal?

No. The purpose of notarizing your Last Will or Codicil is to make it self-attesting. A Last Will or Codicil does not have to be self-attesting to be legally valid.

In the affidavit, what is meant by “Official Capacity of Officer”?

The officer in this case would be a Notary Public. A Notary Public is a state-appointed official who is authorized to authenticate the signing of legal documents by verifying the identity of the persons that sign the document.

Governing Law
What law will govern my Last Will or Codicil?

The governing law for your Codicil will be the law of the jurisdiction where you live at the time of your death. However, the probate court will want to verify that your Codicil was executed (signed) correctly. In most jurisdictions the probate court will want to verify that your Last Will and Codicils were signed in compliance with:
a) local laws (where the Last Will is submitted for probate); or
b) if its signing complies with the law at the time of execution of the place where the Last Will is signed; or
c) if its signing complies with the law of the place where, either at the time of signing or at the time of death, the testator is domiciled.

Miscellaneous
What is "probate"?

Probate is the court-supervised procedure that determines the validity of your Last Will after you die. Probate can also refer to the general process of collecting your assets, paying your debts and distributing the remaining property to your beneficiaries after you die.

What is a testamentary Trust?

A testamentary trust is a trust created in a Last Will that is effective only on the death of the testator.

What does “to die intestate” mean?

To die intestate means that the testator failed to write a Last Will before death or the Last Will was somehow void.

 

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