Understanding Codicils: A Simple Guide to Amending Your Will
Learn what a codicil is, when to use one, and how it can help you update your will without creating an entirely new document. Essential information for singles, parents, and high net worth individuals.
Introduction
A codicil is a legal document that allows you to make minor changes or additions to your existing will without having to rewrite the entire document. Think of it as an amendment or supplement to your will. Codicils must be executed with the same formalities as a will (signed, dated, and witnessed) to be legally valid. Whether you're single without children, married with a family, or have substantial assets, understanding how and when to use a codicil can save you time and money while ensuring your final wishes are properly documented and legally binding.
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Key Things to Know
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A codicil must be executed with the same legal formalities as a will—signed, dated, and properly witnessed according to your state's laws—to be valid.
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Store your codicil with your original will to ensure they're found together when needed. Consider informing your executor about the existence of both documents.
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Multiple codicils can create confusion and increase the risk of contradictions or legal challenges. If you've already made several codicils, creating a new will may be clearer.
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Life events such as marriage, divorce, birth of children, or significant changes in assets should trigger a review of your will and consideration of whether a codicil is appropriate.
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For high net worth individuals, even small changes via codicil can have significant tax implications. Always consult with a tax professional or estate attorney before making changes.
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Digital assets (cryptocurrency, online accounts, digital files) are increasingly important to include in estate planning. Consider using a codicil to address these if they weren't in your original will.
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Self-created codicils using online templates carry higher risks of invalidity. The modest cost of professional legal assistance is usually worth the peace of mind, especially for valuable estates.
Key decisions before you file
Before you file a Codicil in Delaware, a few decisions shape the document: which option to choose and what each one means. The Codicil guide walks through them.
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Delaware Requirements for Codicil
Testamentary Capacity (12 Del. C. § 201)
The testator must be of sound mind and memory, at least 18 years of age, and capable of understanding the nature of their property, the natural objects of their bounty, and the disposition they are making.
Execution Requirements (12 Del. C. § 202)
A codicil must be in writing, signed by the testator (or by another person in the testator's presence and at their direction), and attested and subscribed by two credible witnesses in the presence of the testator.
Self-Proved Codicil (12 Del. C. § 1305)
A codicil may be simultaneously executed, attested, and made self-proved by acknowledgment by the testator and affidavits of witnesses, each made before an officer authorized to administer oaths under Delaware law.
Revocation by Subsequent Instrument (12 Del. C. § 208)
A codicil may be revoked by a subsequent will or codicil that expressly revokes the prior codicil, or by a subsequent will or codicil that contains provisions inconsistent with the prior codicil.
Revocation by Physical Act (12 Del. C. § 208)
A codicil may be revoked by burning, tearing, canceling, obliterating, or destroying the codicil with the intent to revoke it, either by the testator or by another person in the testator's presence and at their direction.
Incorporation by Reference (12 Del. C. § 211)
A codicil may incorporate by reference any document or paper in existence at the time of execution if the language of the codicil manifests this intent and describes the document sufficiently to identify it.
Republication by Codicil (12 Del. C. § 212)
The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil, as of the date of the codicil's execution.
Choice of Law Provisions (12 Del. C. § 1306)
A written codicil is valid if executed in compliance with Delaware law or with the law of the place where the codicil was executed, or with the law of the place where the testator was domiciled at the time of execution.
Interested Witness (12 Del. C. § 205)
A beneficial devise or legacy made in a codicil to an attesting witness is void unless there are two other competent witnesses to the codicil, but the witness may still take as an intestate heir.
Holographic Codicils (12 Del. C. § 202)
Delaware does not recognize holographic (handwritten, unwitnessed) codicils unless they were executed in a jurisdiction that recognizes such documents and meet that jurisdiction's requirements.
Simultaneous Death Provisions (12 Del. C. § 701-708)
If the order of deaths between the testator and a beneficiary cannot be determined, Delaware's Uniform Simultaneous Death Act applies, generally treating the beneficiary as having predeceased the testator.
Pretermitted Heir Protection (12 Del. C. § 301)
A child born or adopted after the execution of a will or codicil who is not provided for in the will or any codicil may receive an intestate share unless it appears the omission was intentional.
Spousal Elective Share (12 Del. C. § 901-908)
A surviving spouse may elect to take a statutory share of the deceased spouse's estate regardless of provisions in a will or codicil, which must be considered when drafting a codicil.
Rule Against Perpetuities (25 Del. C. § 503)
Delaware has abolished the rule against perpetuities for personal property held in trust, but the rule may still apply to other dispositions and must be considered in codicil drafting.
Tax Apportionment (12 Del. C. § 2901-2906)
Unless the codicil provides otherwise, Delaware law specifies how estate taxes are to be apportioned among beneficiaries.
Digital Assets (12 Del. C. § 5001-5007)
A codicil may include provisions for the disposition of digital assets under Delaware's Fiduciary Access to Digital Assets Act, which governs access to and control of digital assets upon death.
Federal Estate Tax Considerations (26 U.S.C. § 2001-2210)
Codicils must consider federal estate tax implications, including applicable exclusion amounts, marital deductions, charitable deductions, and generation-skipping transfer taxes.
Federal Gift Tax Integration (26 U.S.C. § 2501-2524)
Lifetime gifts and testamentary transfers are integrated under federal tax law, requiring consideration of gift tax implications when drafting codicils that may affect the overall estate plan.
HIPAA Authorization (45 C.F.R. § 160, 164)
Codicils that address medical information or healthcare decisions should consider federal HIPAA regulations regarding the privacy of health information.
Electronic Signatures (6 Del. C. § 12A-103)
While Delaware generally recognizes electronic signatures under the Uniform Electronic Transactions Act, wills and codicils are specifically excluded and require physical signatures.