A last will and testament is meant to provide an individual the means to ensure that his family and friends are provided for after his death. When a will is drafted, the writer makes certain assumption that may change. When these circumstances change, the will may need to be altered. Instead of redrafting the will, you can write a codicil, which can alter the content of the original will to better reflect current circumstances.
Wills and Probates
A last will and testament is a document detailing a person's wishes as to how his property should be distributed after his death. A person creating a last will and testament is known as the testator. Probate law contains the legal guidelines that govern how a will is to be drafted, and how it is to be executed after the person's death. It is the responsibility of states to draft and adopt their own probate codes, so probate standards vary. Because of the differing probate codes enacted across the country, the Uniform Probate Code (UPC) was drafted. As of October 2011, the UPC has been adopted outright by 17 states and is endorsed by the American Bar Association. Therefore, the UPC is the best standard to use for general discussions on probate law.
If you want to alter a will, you need to draft a codicil. A codicil can amend, delete, and alter sections of an executed will. To be effective, the codicil must identify the specific portions of the will it is altering by quoting the exact language from the will. This can be achieved easier if the will is divided into sections and the paragraphs are numbered, although identification using page numbers can suffice. When the will is probated, the codicil is considered a part of the will and is read in tandem with the original document. It is vital that the codicil clearly defines the changes that it is making to the will so that the court and the will’s executor can carry out the decedent’s wishes.
Drafting a Codicil
For a codicil to be recognized under probate law, it must be drafted under the same guidelines as a will. The person who drafts the codicil must be 18 years old. The codicil itself must be in writing and signed by the drafter of the original will, signifying that he intends for the codicil to supplement the original will. In addition, the will must either be witnessed by two individuals or a notary public. To qualify as a witness, the person must either see the drafter sign the will, or the drafter must tell the witness that the signature on the will is his. The witness must sign the codicil, and if the witness is a notary public she must also apply her seal. Some cases permit for holographic codicil, which waives the witness requirement. For a holographic will to be upheld by a probate court, it must be signed by the testator, and significant portions of the document must be in the drafter’s handwriting.
If you need to draft a codicil to alter your will, consult with a licensed attorney in your area to assure that your amendment complies with your state’s probate law. Update your will to reflect any major property acquisitions and dispositions made since the will’s execution, to ensure that your property is distributed according to your wishes. This article is not intended to be legal advice. Always consult competent legal counsel on any important legal matter.
John Cromwell specializes in financial, legal and small business issues. Cromwell holds a bachelor's and master's degree in accounting, as well as a Juris Doctor. He is currently a co-founder of two businesses.