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.
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
Codicil Requirements
Gather complete personal information of the testator including full legal name, current address, date of birth, and contact information.
Document the testator's family structure including spouse/partner, children, and other potential beneficiaries or interested parties.
South Dakota Requirements for Codicil
The testator must be of sound mind, at least 18 years old, and capable of understanding the nature of making a codicil, the extent of their property, and the natural objects of their bounty.
A codicil must be in writing to be valid under South Dakota law, as it is considered an amendment to a will.
The codicil must be signed by the testator or by someone else in the testator's conscious presence and at the testator's direction.
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.
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.
A codicil that is handwritten by the testator may be valid without witness signatures if the signature and material portions are in the testator's handwriting.
A codicil can be revoked by a subsequent will or codicil that expressly revokes the previous codicil or contains provisions inconsistent with it.
A codicil can be revoked by the testator performing a revocatory act on the codicil with the intent to revoke, such as burning, tearing, canceling, or destroying.
A codicil must clearly reference the original will it is amending and should be read together with the original will as one integrated document.
A codicil is valid if executed in compliance with South Dakota law or the law of the place where executed at the time of execution, or where the testator was domiciled at the time of execution.
A codicil is not invalidated because it is signed by an interested witness (one who benefits under the codicil), though this may raise a presumption of undue influence.
A codicil or any part thereof procured by undue influence is void under South Dakota law.
A codicil or any part thereof procured by fraud is void under South Dakota law.
A codicil or any part thereof procured by duress is void under South Dakota law.
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.
A properly executed codicil republishes the original will as modified by the codicil as of the date of the codicil's execution.
If the order of deaths cannot be determined, the Uniform Simultaneous Death Act applies, which may affect provisions in a codicil.
A codicil may include provisions for the apportionment of estate taxes among beneficiaries, which will override the default statutory provisions.
South Dakota has not yet adopted provisions for electronic wills or codicils, so traditional execution requirements must be followed.
A codicil should consider federal estate tax implications, particularly for estates exceeding the federal exemption amount.
Frequently Asked Questions
A codicil is a legal document that amends, rather than replaces, a previously executed will. It's essentially a supplement that can add to, subtract from, or modify the provisions in your existing will. The word 'codicil' comes from Latin, meaning a 'little codex' or small addition to a document. Codicils must be executed with the same legal formalities as a will, including being signed, dated, and witnessed according to your state's laws.
A codicil is typically appropriate for minor changes to your will, such as: changing an executor or trustee, adding or removing a specific bequest, updating a beneficiary's name (due to marriage or other circumstances), or clarifying language in the original will. However, if you're making substantial changes—like completely changing your beneficiaries, adding complex trust provisions, or if you've already made several codicils—it's often better to create a new will. For high net worth individuals with complex estates, consulting with an estate planning attorney is recommended before deciding between a codicil and a new will.
To create a valid codicil: 1) Clearly reference your original will by title and date; 2) Explicitly state that this document is a codicil to your existing will; 3) Clearly describe the specific changes you're making; 4) Affirm that all other provisions of your original will remain in effect; 5) Sign and date the codicil; 6) Have it witnessed by the number of witnesses required in your state (typically two); and 7) Store it with your original will. While you can find codicil templates online, it's advisable to have an attorney review or prepare your codicil, especially for high net worth individuals or those with complex estates.
Yes, codicils can be particularly useful for single individuals without children. Your circumstances may change over time—you might develop new relationships, support different charities, or acquire new assets. A codicil allows you to make targeted updates to your will as your life evolves. For example, you might use a codicil to add a new niece or nephew as a beneficiary, change the friend designated as your executor, or modify a charitable bequest. Without children as natural heirs, it's especially important to keep your will current to ensure your assets go exactly where you intend.
For married individuals with children, codicils offer flexibility as family dynamics change. You might use a codicil to: adjust inheritance distributions as children mature or have different needs, add provisions for new grandchildren, update guardianship designations for minor children, modify specific bequests of family heirlooms, or adjust trusts established for children. Codicils allow parents to fine-tune their estate plans without the expense and complexity of redrafting an entire will, ensuring their children and spouse are provided for according to current circumstances.
High net worth individuals should approach codicils with extra caution. While codicils can be convenient, they may not be sufficient for significant estate changes. Consider: 1) Tax implications—even minor changes could have major tax consequences; 2) Complex asset structures—changes to business interests or investment portfolios might require more comprehensive revisions; 3) Multiple jurisdictions—if you have assets in different states or countries, a simple codicil might not address all legal requirements; 4) Potential for contests—multiple amendments can sometimes create confusion that leads to will contests. For substantial estates, it's often advisable to consult with specialized estate planning attorneys and possibly create a new will rather than adding multiple codicils.
Yes, codicils can be challenged in court for the same reasons as wills: lack of testamentary capacity (the person wasn't mentally competent when creating it), undue influence (someone improperly pressured the person to make changes), fraud, or improper execution (not following legal formalities for signatures and witnesses). To minimize the risk of successful challenges: ensure proper execution according to your state's laws, document your mental capacity (especially for older individuals), keep clear records of why changes were made, and consider having your attorney document the process. For high net worth individuals whose estates are more likely to be contested, these precautions are particularly important.
The main alternative to a codicil is creating an entirely new will that revokes the previous one. This is often preferable when: making numerous or significant changes, your original will has already been amended multiple times, your life circumstances have changed dramatically (marriage, divorce, new children), or when tax laws have changed substantially. Other estate planning tools that might be used instead of or alongside codicils include: revocable living trusts (which can be amended without the formalities required for wills), transfer-on-death designations for certain assets, and powers of attorney for financial and healthcare decisions. An estate planning attorney can help determine the best approach for your specific situation.