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 New Hampshire, 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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New Hampshire Requirements for Codicil
Testamentary Capacity (NH RSA 551:1)
The testator must be of sound mind and memory, at least 18 years of age, and understand the nature of their property, the natural objects of their bounty, and the disposition they are making.
Writing Requirement (NH RSA 551:2)
A codicil must be in writing to be valid under New Hampshire law.
Signature Requirement (NH RSA 551:2)
The codicil must be signed by the testator or by some person at the testator's express direction and in the testator's presence.
Witness Requirements (NH RSA 551:2)
The codicil must be signed by two or more credible witnesses who shall, at the testator's request and in the testator's presence, attest to the testator's signature.
Self-Proving Affidavit (NH RSA 551:2-a)
A codicil may be made self-proving at the time of its execution by the acknowledgment of the testator and the affidavits of witnesses, each made before a notary public.
Holographic Codicils (NH RSA 551:2)
New Hampshire does not recognize holographic (handwritten, unwitnessed) codicils as valid.
Revocation by Subsequent Will (NH RSA 551:13)
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 (NH RSA 551:13)
A codicil may be revoked by burning, tearing, canceling, obliterating, or destroying with the intent and purpose of revoking it by the testator or by another person in the testator's presence and by the testator's direction.
Incorporation by Reference (NH RSA 551:3-a)
A codicil may incorporate by reference any document in existence when the codicil is executed if the codicil manifests this intent and describes the document sufficiently.
Interested Witness (NH RSA 551:3)
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.
Choice of Law Provisions (NH RSA 551:5)
A codicil is valid if executed in compliance with the law of the place where it is executed at the time of execution, or with the law of the place where the testator is domiciled at the time of execution or at the time of death.
Simultaneous Death Provisions (NH RSA 563-A:2)
If the order of deaths cannot be determined, the property of each person shall be disposed of as if they had survived, unless the codicil provides otherwise.
Probate of Codicils (NH RSA 552:7)
Codicils must be filed with the probate court and proven in the same manner as wills to be effective.
Undue Influence (Common Law)
A codicil or any provision thereof procured by undue influence is invalid under common law principles.
Fraud or Duress (Common Law)
A codicil or any provision thereof procured by fraud or duress is invalid under common law principles.
Tax Considerations (26 U.S.C. § 2001)
Codicils that affect the disposition of property may have federal estate tax implications that must be considered.
Generation-Skipping Transfer Tax (26 U.S.C. § 2601)
Codicils that create generation-skipping transfers may be subject to additional federal taxation.
Electronic Signatures (NH RSA 294-E:3)
New Hampshire has adopted the Uniform Electronic Transactions Act, but it explicitly excludes wills and codicils from its coverage, meaning electronic signatures are not valid for codicils.
Dependent Relative Revocation (Common Law)
Under this doctrine, if a testator revokes a codicil with the intention of making a new one immediately, and the new one is invalid, the old codicil may still be given effect if the testator would prefer it to intestacy.
Republication by Codicil (Common Law)
A codicil republishes the will as modified and validates any portion of the will that might have been invalid at the time of its execution.