QUESTION: I did my Will many years ago and I need to add some items and change some items. What can I do?
Answer: A codicil is a testamentary document that supplements, amends, qualifies, or republishes a prior testamentary document.
Question: Can I just draft a codicil and sign it?
Answer: A codicil must be executed with the same formalities as a will. A codicil need not be executed in the same way as the will it modifies. Thus, a holographic codicil can be made to a witnessed will and vice versa. However, the codicil must satisfy the execution formalities for one of the recognized types of testamentary disposition. Thus, a witnessed codicil must satisfy the requirements for a witnessed will, and a holographic codicil must satisfy the requirements for a holographic will and must be made with testamentary intent. \
The word “will” is defined by the Probate Code to include codicils “and any testamentary instrument which merely appoints an executor or revokes or revises another will.” Thus, provisions in the Probate Code that apply to “wills” also apply to codicils.
A valid codicil is part of the will to which it refers, and both instruments are construed together as one.
Question: What should be in the codicil?
Answer: First, you must have the necessary testamentary intent to make a codicil or it will not be valid. It can amend, supplement, change and/or delete provisions of the prior Will. Thus, you can remove beneficiaries, change beneficiaries, correct the spelling of names, places and items, or you supplement the prior Will with more items.
Question: What if I’m not sure if the prior Will is valid?
Answer: You can ‘republish’ the Will and then properly execute the codicil so as to essentially make the Will valid. Keep in mind that a codicil should clearly state the client’s intent to republish the previous will if republication is desired.
Although republication is not necessary to pass property acquired after the date of execution of the will, the law provides that a will, whether or not modified or republished by a codicil, passes all property owned by the testator at death, including property acquired after the will execution.
A codicil is a very powerful document and can certainly allow you to change a Will in a relatively easy manner if done properly.
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Brian D. Lerner is an Immigration and Naturalization Attorney. He is a Certified Specialist in Immigration and Nationality Law as Certified by the State Bar of California, Board of Legal Specialization. Mr. Lerner is married to a Filipina and has been helping Filipinos immigrate to the United States for nearly 20 years. His firm represents clients in Deportation/Removal proceedings, does Waivers, Appeals, Naturalization, Adjustments, Criminal Relief, Citizenship, Consulate Processing, Work Permits, Investment Visas and all other areas of Immigration and Naturalization Law. You can go online to http://www.californiaimmigration.us/ and get a free consultation or call us at (562) 495-0554 for an in-person office consultation.
