When you want to change your will, whether simply replacing your personal representative (also known as an “executor” or “executrix”) or changing who will receive portions of your estate, should you execute a whole new will or simply an amendment, which is called a “codicil”?
In almost all cases, we recommend executing an entirely new will. Doing so avoids confusion and makes it easier for those ultimately administering the estate since they only need to refer back to a single document.
Clients might feel that we’re just trying to create more billable work for ourselves since creating a whole new will appears more difficult than a short codicil. It’s certainly longer.
But the reality is that it often takes less work for the attorney to create a new will than to amend an old one, especially if they drafted the initial document and it’s already in their estate planning system. Then they can simply revise the document instead of crafting a new one that correctly refers back to the original will.
A recent probate case in our office presented another reason to favor a new will over a codicil. The decedent had signed a codicil omitting two beneficiaries included in the original will. When both the original will and the codicil were presented to the probate court, the clerk required us to give notice to these omitted beneficiaries, even though they are neither heirs (next of kin) nor any longer devisees (recipients of an inheritance) under her will.
This raises a few problems. First, the probate court form doesn’t have a place to list these individuals. Second, this could invite a challenge to the codicil that would be much less likely to happen if the decedent had executed a new will.
But the third issues is the most complicated. We believe that one of the devisees has passed away (perhaps the reason the decedent had removed her as someone who would inherit) which creates a number of problems. Unless a will directs that a bequest will not occur if the recipient does not survive the person writing the will (the “testator”) or direct that it will go to someone else, it will typically go to their estate. If that individual’s probate process had already been completed, their personal representative may have to reopen it in order to have the authority to receive and distribute the bequest. In this case, the court may require them to reopen the estate just so that we have someone to whom we can direct the notice that the deceased individual had been removed as a beneficiary under the will in the estate we’re administering — a lot of work for no clear benefit.
Have I lost you with this explanation? Don’t worry about it. Just execute a new will, not a codicil, if you want to make any changes in your estate plan.