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 Virginia, 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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Virginia Requirements for Codicil
Testamentary Capacity (Virginia Code § 64.2-401)
The testator must be of sound mind and memory, and have the mental capacity to understand the nature of making a codicil, the extent of their property, and the natural objects of their bounty.
Age Requirement (Virginia Code § 64.2-401)
The testator must be at least 18 years of age or an emancipated minor to execute a valid codicil.
Writing Requirement (Virginia Code § 64.2-403)
A codicil must be in writing to be valid in Virginia. Oral codicils are not recognized.
Signature Requirement (Virginia Code § 64.2-403)
The codicil must be signed by the testator or by someone else in the testator's presence and by their direction.
Witness Requirements (Virginia Code § 64.2-403)
The codicil must be signed in the presence of at least two competent witnesses who are present at the same time. The witnesses must also sign the codicil in the presence of the testator and each other.
Interested Witness Rule (Virginia Code § 64.2-404)
A beneficiary who also serves as a witness to the codicil is not automatically disqualified from receiving their bequest, but it's best practice to use disinterested witnesses.
Self-Proving Affidavit (Virginia Code § 64.2-452)
While not required, a codicil may include a self-proving affidavit, which eliminates the need for witnesses to testify in court when the will is probated.
Revocation by Subsequent Will or Codicil (Virginia Code § 64.2-410)
A codicil may be revoked by a subsequent will or codicil that expressly revokes it or contains provisions inconsistent with it.
Revocation by Physical Act (Virginia Code § 64.2-410)
A codicil may be revoked by a physical act such as burning, tearing, canceling, obliterating, or destroying with the intent to revoke.
Incorporation by Reference (Virginia Code § 64.2-413)
A codicil may incorporate by reference any writing in existence when the codicil is executed if the codicil manifests this intent and sufficiently describes the writing.
Holographic Codicil (Virginia Code § 64.2-403(B))
A holographic codicil (entirely in the testator's handwriting) is valid in Virginia without witnesses if signed by the testator and the material portions are in the testator's handwriting.
Republication by Codicil (Virginia Code § 64.2-415)
A properly executed codicil republishes the original will as of the date of the codicil, including any intervening amendments.
Choice of Law Provisions (Virginia Code § 64.2-424)
Virginia recognizes the validity of a codicil if it is executed in compliance with the law of the place where it was executed or where the testator was domiciled at the time of execution.
Simultaneous Death Provisions (Virginia Code § 64.2-2200 et seq.)
Under the Uniform Simultaneous Death Act, if the testator and a beneficiary die simultaneously, the beneficiary is deemed to have predeceased the testator unless the codicil or will provides otherwise.
Slayer Statute (Virginia Code § 64.2-2500 et seq.)
A beneficiary who intentionally and feloniously kills the testator is not entitled to any benefits under the will or codicil and is treated as if they predeceased the testator.
Pretermitted Heir Protection (Virginia Code § 64.2-419)
A child born or adopted after the execution of a will or codicil may be entitled to a share of the estate if not provided for or intentionally omitted.
Elective Share Rights (Virginia Code § 64.2-302)
A surviving spouse has the right to claim an elective share of the deceased spouse's augmented estate, which a codicil cannot eliminate.
No-Contest Clause Enforcement (Virginia Code § 64.2-520)
Virginia generally enforces no-contest clauses (in terrorem clauses) in wills and codicils, which disinherit beneficiaries who challenge the validity of the document.
Electronic Wills and Codicils (Virginia Code § 64.2-403)
Virginia has not adopted the Uniform Electronic Wills Act and does not currently recognize purely electronic wills or codicils.
Federal Estate Tax Considerations (26 U.S.C. § 2001 et seq.)
Codicils should consider federal estate tax implications, including marital deductions, applicable exclusion amounts, and generation-skipping transfer tax exemptions.