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 Montana, 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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Montana Requirements for Codicil
Testamentary Capacity (Montana Code Annotated § 72-2-521)
The testator must be of sound mind, at least 18 years of age, and capable of understanding the nature of making a codicil, the extent of their property, and the natural objects of their bounty.
Writing Requirement (Montana Code Annotated § 72-2-522)
A codicil must be in writing to be valid under Montana law. Oral codicils are not recognized.
Signature Requirement (Montana Code Annotated § 72-2-522)
The codicil must be signed by the testator or by someone else in the testator's conscious presence and by the testator's direction.
Witness Requirements (Montana Code Annotated § 72-2-522)
The codicil must be signed by at least two individuals, each of whom signed within a reasonable time after witnessing either the signing of the codicil or the testator's acknowledgment of that signature or acknowledgment of the codicil.
Self-Proving Affidavit (Montana Code Annotated § 72-2-524)
A codicil may be simultaneously executed with an attached affidavit of the testator and witnesses, making it self-proving and eliminating the need for witness testimony during probate.
Holographic Codicil (Montana Code Annotated § 72-2-523)
A codicil that is written entirely in the testator's handwriting and signed by the testator is valid without witnesses, even if not witnessed according to formalities.
Revocation by Subsequent Will (Montana Code Annotated § 72-2-527)
A codicil is revoked by a subsequent will that expressly revokes the codicil or contains provisions that are inconsistent with the codicil.
Revocation by Physical Act (Montana Code Annotated § 72-2-527)
A codicil or any part of it is revoked by performing a revocatory act on the codicil with the intent to revoke, such as burning, tearing, canceling, obliterating, or destroying.
Integration with Original Will (Montana Code Annotated § 72-2-522)
A codicil must clearly reference the original will it is modifying and should be read together with the will as one integrated document.
Choice of Law Provisions (Montana Code Annotated § 72-2-526)
A codicil is valid if executed in compliance with Montana law or with the law of the place where executed at the time of execution, or where the testator was domiciled, had a place of abode, or was a national at the time of execution.
Interested Witness (Montana Code Annotated § 72-2-525)
A codicil is not invalidated because it was signed by an interested witness (one who stands to benefit from the will or codicil), but the interested witness may be limited to receiving what they would have received had the testator died intestate.
Incorporation by Reference (Montana Code Annotated § 72-2-529)
A codicil may incorporate by reference any document in existence when the codicil is executed if the codicil manifests this intent and sufficiently describes the document.
Events of Independent Significance (Montana Code Annotated § 72-2-530)
A codicil may dispose of property by reference to acts and events that have significance apart from their effect upon the disposition made by the codicil, whether they occur before or after the execution of the codicil.
Simultaneous Death Provision (Montana Code Annotated § 72-2-811)
If a codicil modifies beneficiary designations, it should account for the possibility of simultaneous death of the testator and beneficiary, as governed by the Uniform Simultaneous Death Act.
Testamentary Additions to Trusts (Montana Code Annotated § 72-2-531)
A codicil may modify a will to pour over assets into a trust, even if the trust was amended after the will was executed, as long as the trust was identified in the will.
Ademption by Extinction (Montana Code Annotated § 72-2-616)
If a codicil specifically bequeaths property that is no longer in the testator's estate at death, the bequest fails unless protected by anti-ademption statutes.
Antilapse Provisions (Montana Code Annotated § 72-2-613)
A codicil should consider Montana's antilapse statute, which may save a gift to a predeceased beneficiary by redirecting it to the beneficiary's descendants unless the codicil expressly provides otherwise.
Federal Estate Tax Considerations (26 U.S.C. § 2001 et seq.)
A codicil should consider federal estate tax implications, including marital deductions, applicable exclusion amounts, and generation-skipping transfer taxes.
Electronic Signatures (Montana Code Annotated § 30-18-101 et seq.)
Montana has adopted the Uniform Electronic Transactions Act, but electronic signatures are generally not accepted for wills or codicils unless specifically authorized by state law.
Notarization Requirements (Montana Code Annotated § 72-2-524)
While not required for validity, notarization of a codicil in addition to witness signatures can provide additional evidence of authenticity and may be part of making a codicil self-proving.