Articles of Interest: Wills, Trusts, and More

Codicil to Will

"CAN’T YOU JUST MODIFY MY EXISTING WILL?"

From time to time, a person comes to my office and asks me to "modify their current Will." "Can’t you just add a codicil to my current Will?" They’ll say.

The primary reason a client wants me to draft a codicil to their existing Will as opposed to a new Will is cost. They believe that adding a codicil to their existing Will is less expensive than having an attorney draft a new Will. That’s untrue.

First of all, what is a "codicil"? Black’s Law Dictionary—a very famous law dictionary—defines the word "codicil" as follows: "A supplement or an addition to a will; it may explain, modify, add to, subtract from, qualify, alter, restrain or revoke provisions in [sic] existing will."

Now, the person coming to my office and asking me to draft a codicil to their existing Will might say, "Exactly. That’s exactly what I want; a modification to my existing Will."

But let’s not forget the primary reason a person wants a codicil to their Will drafted—as opposed to having a new Will drafted—cost. So, is a codicil cheaper than a new Will? Probably not.

Most people have "simple Wills." By this, I mean that the person’s Will leaves everything to their spouse or children, in equal shares and free of any trust, i.e., an outright distribution. A simple Will is quite inexpensive, probably less than $200.

On the other hand, in order to draft a codicil to a simple Will, a lawyer would have to review your existing Will and draft the codicil to your Will. The codicil would have to be very specific, applying only to your Will, since the codicil would be a specific modification of a specific Will.

In pricing a codicil, a lawyer would have to take into consideration the time it would take him to review your existing Will and to draft the codicil to your Will. Lawyers in this area have an hourly billing rate in a range of $180 to $275. If the lawyer is going to meet with you, review your existing Will, draft a specific modification to your existing Will, mail the codicil to you for you to review, and meet with you a second time to have you sign the codicil—how much do you think the lawyer is going to charge you? $50? $75? Probably not.

Some people might think, "Well, I don’t need the lawyer to review my existing Will and I’ll tell the lawyer what language I want added or deleted from my existing Will. All he has to do is type it up, and I’ll sign it."

If that’s what you think is involved in drafting estate planning documents, you should do it all yourself. Go buy a typewriter—you can get a typewriter on E-Bay, the on-line auctioneer, for about $15—and type the codicil yourself. No lawyer would perform such work.

Without reviewing the entire, existing Will, the lawyer would have no idea if the Will needed to be modified in other ways. For instance, you might think that only one, small provision of the Will needs to be modified, but maybe there are other issues that need to be addressed—issues of which you are unaware. A lawyer does not act blindly; it’s just not in our nature. Lawyers and engineers think alike. Both professions call for meticulous attention to detail.

Putting aside the myth relating to the cost—or lack of it—of a codicil, I don’t advise using a codicil for other reasons.

What if you sign a codicil—by definition, a document that is separate and apart from your Will—and your executor finds the Will, but not the codicil? Now, the wishes expressed in your codicil will never be known. What if the executor or a beneficiary finds the codicil to your Will and they don’t like what the codicil says? What is to prevent them from simply tossing the codicil in the trash and submitting only the Will to probate? After all, the codicil post-dates the Will, so there is no reference in the Will to the codicil.

In my opinion, codicils were documents that lawyers drafted before the innovation of the computer—when lawyers handwrote documents, sent documents to a printer, or used typewriters. Codicils are a thing of the past. They won’t save you money, and they might cost you dearly. In short, just have a new Will drafted, it’s inexpensive.