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 Indiana, 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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Indiana Requirements for Codicil
Testamentary Capacity (Indiana Code § 29-1-5-1)
The testator must be of sound mind and memory when executing the codicil, meaning they understand the nature of making a codicil, the extent of their property, and the natural objects of their bounty.
Age Requirement (Indiana Code § 29-1-5-1)
The testator must be at least 18 years of age or be a member of the armed forces to execute a valid codicil.
Writing Requirement (Indiana Code § 29-1-5-3)
A codicil must be in writing to be valid in Indiana. Oral codicils are not recognized under Indiana law.
Signature Requirement (Indiana Code § 29-1-5-3)
The codicil must be signed by the testator or by someone else in the testator's presence and at the testator's express direction.
Witness Requirements (Indiana Code § 29-1-5-3)
The codicil must be signed by at least two competent witnesses who witnessed either the signing of the codicil or the testator's acknowledgment of the signature or of the codicil.
Interested Witness (Indiana Code § 29-1-5-2)
A beneficiary who serves as a witness to a codicil is not automatically disqualified from taking under the will or codicil, but it may raise a presumption of undue influence.
Self-Proving Affidavit (Indiana Code § 29-1-5-3.1)
A codicil may be made self-proving at the time of its execution by attaching an affidavit signed by the testator and witnesses before a notary public, eliminating the need for witness testimony during probate.
Revocation by Subsequent Will or Codicil (Indiana Code § 29-1-5-6)
A codicil may be revoked by a subsequent will or codicil that expressly revokes the prior codicil or contains provisions inconsistent with the prior codicil.
Revocation by Physical Act (Indiana Code § 29-1-5-6)
A codicil may be revoked by the testator, or by someone in the testator's presence and at their direction, performing a physical act of burning, tearing, canceling, obliterating, or destroying with the intent to revoke.
Integration with Original Will (Indiana Code § 29-1-5-8)
A codicil must clearly reference the original will it is modifying and should be read together with the original will as one integrated document.
Republication by Codicil (Indiana Code § 29-1-5-9)
A properly executed codicil republishes the original will as modified by the codicil as of the date of the codicil's execution.
Incorporation by Reference (Indiana Code § 29-1-5-10)
A codicil may incorporate by reference any document or paper existing at the time of the execution of the codicil, if the document is sufficiently identified in the codicil.
Holographic Codicils Not Valid (Indiana Code § 29-1-5-3)
Indiana does not recognize holographic (handwritten, unwitnessed) codicils, even if valid in the jurisdiction where executed.
Choice of Law for Foreign Executed Codicils (Indiana Code § 29-1-5-5)
A codicil executed outside Indiana is valid if executed in compliance with Indiana law or the law of the place where it was executed or where the testator was domiciled at execution.
Undue Influence Prohibition (Indiana common law; Gast v. Hall, 858 N.E.2d 154 (Ind. Ct. App. 2006))
A codicil procured by undue influence is invalid. Undue influence occurs when the testator's free agency is destroyed and the document reflects someone else's will rather than the testator's.
Fraud Prohibition (Indiana common law)
A codicil procured by fraud is invalid. Fraud occurs when the testator is deceived by a misrepresentation and executes a codicil that they would not have executed but for the misrepresentation.
Mistake Doctrine (Indiana common law; Restatement (Third) of Property: Wills and Other Donative Transfers § 12.1)
A codicil may be reformed to correct mistakes if clear and convincing evidence establishes that the testator's intent and the terms of the codicil were affected by a mistake of fact or law.
Tax Considerations (26 U.S.C. § 2001 et seq. (Internal Revenue Code))
Codicils should consider federal estate tax implications, including the unified credit, marital deduction, charitable deduction, and generation-skipping transfer tax.
Electronic Signatures Not Valid (Indiana Code § 29-1-5-3)
Indiana has not adopted the Uniform Electronic Wills Act and does not recognize electronically signed codicils.
Simultaneous Death Provision (Indiana Code § 29-2-14-1 et seq.)
A codicil should address the Uniform Simultaneous Death Act provisions, which apply when the testator and a beneficiary die simultaneously or in circumstances where it cannot be determined who died first.