What is a Codicil for a Will or Trust?

Updated

Attorney, distinguished law professor

After you create a will, chances are that you can experience important changes in your life that affect any decisions already listed in your will. For example, maybe you get married or divorced. Perhaps you have another child or someone you named in your will who has died. Maybe you inherit a substantial amount of money or sell a significant piece of property that you own.

Jump ahead to these sections:

When these life events occur, you may want to change your will—but is it even possible? Do you have to draft an entirely new document? You may wish simply to change the name of a beneficiary or include a new piece of property without having to pay a lawyer to draft an entirely new will or trust. You do not have to create a new will, but in fact, add a codicil. Here is how to do it.

What’s a Codicil for a Last Will and Testament?

A codicil is a legal document that allows you to make changes to your existing will or trust without having to recreate the entire document. This can be beneficial if you only want to make minor changes without affecting the rest of the document.

If you plan to make significant changes to your will or trust, it is best to revoke the existing document and create a new will or trust. However, what situations require a codicil, and what situations require you to draft a new will? Here are some things that you may be asking yourself:

  • When should I use a codicil?
  • How do I create a legal codicil?
  • What is the difference between a codicil to a will and a trust?
  • What are the benefits and drawbacks of using a codicil?

We answer these questions and more below.

ยป MORE: Honor a loved one with an online memorial. Get 10% off at Keeper with promo code JOINCAKE.

 

How Can You Add a Codicil to a Will?

Making a codicil to a will can be easy if the changes you wish to make are simple. Here are several steps you should follow to create a legal codicil to your will:

Step 1: Read your current will

The first thing you should do before making any changes to your will is to read your existing will. It may have been a long time since you first drafted your will. Take stock of what you’ve written in your existing will before changing any beneficiaries, adding new property, or stating any new intentions.  

Step 2: Be specific about what you are changing

If you decide to make simple changes to your will, be sure to identify yourself in the codicil as the person who is making the changes and the date on which you are making them. Also, be sure to reference your existing will and the date on which it was drafted. Stating the dates of each document can help clarify your most recent intentions. 

You may change as much of your will as you wish, but be specific. State specifically whether you are amending your will in its entirety or only partially. If you are only making partial changes, be sure to identify the specific provision in the will that is being changed.

Each provision may be identified by article and paragraph number. Finally, be specific about what terms or language you are changing or adding and review your changes to make sure you are clear about your intentions.

Step 3: Follow all the formalities of signing a will

Every state has specific requirements for writing and executing a will. The same rules that apply to wills apply to codicils. This means that you must have at least two disinterested witnesses with you when you sign your codicil. A disinterested witness is someone who does not receive any property in your will. Your estate planning attorney can help you make sure you are following the specific rules required for codicils in your state.

Step 4: Keep your codicil with your existing will

Always keep your codicil with your existing will to avoid any confusion about what the codicil is amending. If the documents are not located together, your intentions may not be carried out when your will is probated.

What’s a Codicil for a Trust?

A codicil to a trust is called a “trust amendment.” A trust amendment serves the same purpose as a codicil to a will. When changes occur in your life that affect the terms of an existing trust, you may need to amend your trust to accommodate those changes. 

The process for executing a trust amendment is the same as the process for making a codicil to a will except that witnesses are not required for a trust. Consider, however, that a trust is usually more complicated than a will and may require much more clarity when making changes. Because of this, it is often better to simply draft a new trust to avoid confusion.

How Can You Add a Codicil to a Trust?

Provided you are clear about what you want to change in your trust, making a trust amendment is as easy as making a codicil to a will. Remember to consider the following:

  • Read your existing trust agreement to review all your intentions with regards to beneficiaries, new property, and any other legal wishes.
  • Decide what changes you want to make.
  • Make reference to the existing trust and identify the date on which it was created. Also state the date on which you are making changes to the trust.
  • Be specific about what provisions in the trust you are amending and what new terms you want included in your trust amendment. 
  • As with a codicil and a will, you should always keep your trust amendment with your existing trust.

Frequently Asked Questions: Codicils

Creating a codicil is no different than creating an original will or trust, except the codicil must incorporate the existing legal document that it is changing by referencing it. Because of this, many people view codicils as complicated and are afraid to change their wills or amend their trusts. 

Here are several common questions about codicils and some simple answers that may alleviate any fear about making one when it is appropriate for you.   

Can you add a codicil to a will or trust without a lawyer?

By following the simple process enumerated above, you can very easily create a codicil to your will or an amendment to your trust without a lawyer. However, making a codicil for yourself is recommended for only the simplest of changes. Because wills and trusts are legal documents and often can include complex legal concepts, it is always good to consult with an attorney before attempting to amend a legal document. 

Consider also that a codicil is a legal tool that was first used before modern technology afforded the use of computers—when attorneys had to draft wills and trusts by hand or type them on a typewriter.

Retyping an entire document to make simple changes was not always practical or efficient. In fact, it was expensive. But in the age of computers, it is just as quick and easy for an attorney to produce a new will or trust as it is to draft a codicil.

Depending on the situation, using a codicil today actually can be more time-consuming and expensive than just creating a new will or trust.   

What’s the difference between a will and a codicil?

A will and a codicil are two different legal documents. A will is an original document that includes all of the drafter’s (or the “testator’s”) wishes with respect to the disposition of their property upon death. A will can be quite substantial in what it includes and how it expresses all of the testator’s wishes.

A codicil is a separate, much simpler document than the will that it references. A codicil is a supplement to a will and might address only one or two specific items in the testator’s will that the testator wishes to change.

If the drafter wants to make significant changes to the will, then the codicil may become more complicated and defeat its own purpose. In this case, it may be less confusing and more efficient to just draft a new will.

In addition, a codicil is dependent on the will that it supplements. If you have an existing will and a codicil but then revoke or terminate the existing will, you also revoke the codicil to the will as well. However, a will is not dependent on its codicil. So if you revoke only the codicil to a will, the will that the codicil supplements does not automatically terminate.       

When might you need a codicil for a will or trust?

Although it may be just as easy to produce an entirely new document that includes the changes you wish to make, there are a host of reasons why you may wish to make a codicil to your will or a trust amendment. Here are some common reasons why you might consider using a codicil:

  • To add or change a beneficiary
  • You want to include a new child or grandchild
  • A beneficiary named in your will passes away
  • You acquire new property that you wish to include in your will or sell property that you wish to remove from your will
  • New tax laws may affect the disposition of your property in your will
  • You wish to name a new executor of your will or a new trustee of your trust
  • You get married or divorced
  • You relocate to a new state that has different laws that affect your will
  • You wish to change the amount that you gift to a charity or other beneficiary
  • You need to incorporate another estate planning document into your estate plan

Of course, there also are reasons why you may not wish to use a codicil and instead create a new will. One reason may be privacy. For example, if you use a codicil to change a beneficiary, the former beneficiary may see that they have been replaced by the new beneficiary named in the codicil.

However, by creating a new will, there is nothing identifying the former beneficiary who was removed. You may want to avoid using a codicil if you do not want to make your changes public.

Another reason not to use a codicil may be that you have too many codicils. If you make too many changes to your will by creating more and more codicils, this can cause confusion over what you actually intended in your will. If you have more than one codicil, it is probably best just to draft a new will.

When to Use a Codicil

Using a codicil to a will or a trust amendment may be a simple and effective way of making changes to your existing will or trust. But it is not always the most appropriate tool to use.  

Adding a codicil to your will or a trust amendment to your existing trust is easy if you need to make simple changes, such as naming a new beneficiary or including a new piece of property. However, if you need to make significant or a lot of changes with regards to your overall estate plan, it may be simpler to draft a new document in its entirety. 

Icons sourced from FlatIcon.