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Monday, April 12, 2010

Can't I just use a codicil instead of a whole new will?

A Codicil is an amendment to an existing Will. It's much like a mini-Will, because it has a similar format and has all the same signing/witnessing requirements as a Will. A Codicil is shorter than a Will (rarely running more than one page long) and is quicker and cheaper to prepare than a new Will.

The problem with saying that something is cheaper is that to many people, cheaper is always better. Codicils, like everything else, are useful in the right circumstances. When you need a new Will but all you're prepared to pay for is a Codicil, you're not getting the right document.

A Codicil is intended to make a small change to your Will that doesn't affect the overall structure of your estate plan. For example, if you have appointed your brother as your executor then he moves to Australia, you might not want to have someone that far away to look after your estate. To change your choice of executors, you could easily prepare a Codicil that removes your brother's name and adds a new executor.

On the other hand, if you want to change your entire distribution and set up trusts, you should probably get a new Will done.

The test I've always used to determine whether a client needs a Codicil or a whole new Will is the clarity test. Simply put, I look at the potential for anything in the documents to become confusing or questionable. If a Codicil has any chance at all of messing up the estate plan, then I recommend a new Will.

I've seen as many as six Codicils attached to one Will, which in my view is asking for trouble. Think about it. The Will is document A. Codicil B changes Will A. Codicil C changes Will A. Codicil D changes Codicil B. Codicil E changes Will A and Codicil D. The potential for mix-ups is tremendous.

I also recommend a whole new Will rather than a Codicil if the original Will is not particularly strong, or is lacking a full set of executor's powers.

So can you use a Codicil? As always, it depends on the situation.

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