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Is a codicil legally binding?

Things change. We know that our lives do not stay the same for any significant period. As a result, the plans that we made years ago may no longer apply to our life. You and your wife may have planned a big trip but then you found out that you were expecting a baby! This is an example of a positive change in your life. Of course, not every change that you encounter is going to be a good one. However, one thing we do know for certain is that change is inevitable and that it impacts all our lives. 

Planning for the future can be difficult because it forces us to slow down and consider what our lives are going to be like in five, ten, or even fifty years. It's hard to look that far into the future because we can become so absorbed in our present. Think about your activities for the past week: work, social obligations, your kids’ school responsibilities, their extracurricular activities- the list can go on and on. Stopping for any appreciable length of time to think about planning for the distant future can seem impractical. How can we slow down our lives to think that far ahead?

However difficult it may be to think about our lives in the future, it is good practice to do this in many regards. Not the least of which is about creating a will for us. One of the most common objections that the attorneys with the Law Office of Bryan Fagan hear when it comes to creating a will is that if a person is young that he or she will have plenty of time to get a will created. After all, wills are only for old people, right? A younger adult with a family and other responsibilities has too much going on to stop and draft a will, right?

If this is your position on this subject, then I can’t say I blame you for thinking this way. However, before we get into our topic of codicils for today's blog post I wanted to mention one thing to you. If you are in your 20s, 30s, or 40s then you need to start thinking about how a will can impact your life and that of your children in a positive way. There is no requirement that you be old, wealthy, or anything at all when it comes to creating a will. Rather, if you are an adult then you have an obligation (in our opinion) to have a will. No matter if you have children or not, the time you take now to draft a will can leave a lasting impact on your family once you pass on. 

Ultimately, creating a legacy for your family and those around you is what a will is all about. Even if you don’t own much property or have children a will can still assist your family once you pass away. Imagine being your mother, father, or sibling who must handle matters after you pass on. You probably don’t want him or her to have to sort through all the difficult emotions associated with that time and must handle legal matters related to your death without the guidance of a will. Proper estate planning can help you to leave a legacy, help your family and ensure that they can positively consider your life after you pass away. 

To learn more about these types of topics please contact the Law Office of Bryan Fagan today. We offer free of charge consultations six days a week at our three Houston area office locations, over the phone, and via video. Whether you already have a will and need to update it (more on that in a moment) or have never thought about a will before, the attorneys with our office are ready and willing to assist you. We value the opportunity to serve you and our community by providing top-notch legal representation. 

Changing a will 

Once you go through the process of drafting a will, the next thing that you may encounter when it comes to estate planning is the need to change or update the will. In many cases, this occurs because you acquire new property that you need to plan for in the will. Or, you may have had a birth or death in your family that has caused you to reconsider how your property is distributed. Either way, there is nothing wrong with updating a will. There are multiple ways to accomplish this task. What we want to figure out is the most efficient way to get this done at the least expense to you and your family. 

A codicil is a way to update your will without having to create a brand-new document. This can make a lot of sense especially if you find yourself in a situation where you won’t need major changes but rather a few minor ones here or there. To make your will reflect the current circumstances of your life a codicil may be just the method you need to go about doing that. However, before we can talk about updating or changing a will, we need to learn more about what a will is and how it can impact your life and the lives of those around you. 

What does a will do?

Before we can talk about a codicil or anything having to do with a will, I think it makes sense for us to consider what a will is. A will is a legal document that instructs an executor on how to distribute property and other assets of yours upon your death. Each of us has an estate once we turn 18. An estate represents all the assets and debts in our life. When we pass away your property and debts are no longer yours since you are no longer living.  Rather, the assets and debts are a part of your estate. 

You will name someone as the executor of your will within the document itself. An executor is a person who will execute your wishes in terms of distributing property. Whatever you decide to do as far as dividing up property, the executor has a legal obligation to follow through with your plan. You should think carefully about who you choose for this important job. Sometimes people assume that their spouse will be the best person for this job. However, you may have a sibling, cousin, or another person that you believe is best suited to fulfill this obligation. 

Before naming him or her as the executor of your will you should talk to him or her about this first. The person may not be willing or able to fulfill the responsibilities for several reasons. The last thing you should want is to put that person in a position where they are caught off guard by your decision and feel obligated to act in that capacity. The person should understand the responsibilities of being the executor of your will and agree to serve in that capacity. Depending upon your age and circumstances, the executor may then be part of your will that you need to change for any number of reasons. 

The requirements for a valid will are minimal. As the person who created the will, known as the testator, you must sign the document when it reflects your final intentions. Additionally, you need to find two witnesses (who are not also beneficiaries under the will) to sign the document once they have witnessed you sign. If you are mentally capable of making decisions and understanding the contents of the document that is about it as far as requirements for a valid will in Texas. 

What is a codicil?

A codicil is a formal and legally binding method of updating your will. The benefit to drafting a codicil is that it is a separate document, physically speaking, from your original will. We are not talking about making marks through the original will and then writing in updates to the will above what you scratched through. Rather, a codicil is usually a separate sheet of paper that will be attached to your original will. Think about a codicil like you would think about an amendment to a contract or an exhibit to a presentation that you created for work. It is a part of the original document, but it is physically separate from it, as well. 

Most wills are complex documents that cover a wide range of property distribution decisions. For that reason, it is foreseeable that at some point in time you would decide to change an element or two of the will as far as where a certain asset will go after you pass away. Changing a beneficiary is a common reason why your will may need to be updated. Deaths, births, and evolving relationships can mean that you need to change your will at least one time after an initial version. 

For instance, you may have a child with whom you have a strained relationship. Drug and alcohol abuse may have put your child in a position where he or she cannot be trusted to receive property from you. Your relationship may have reached a breaking point regarding your addiction and lifestyle choices.  The result of this discussion may be that you have left that child out of your will This was likely an extremely difficult decision for you but one that you felt was necessary rather than enabling your child. 

However, you may have also found yourself welcoming a wayward child back into your life. Maybe some tough love that you provided him or her was just what the doctor ordered as far as helping get their life back on track. Now that he or she is back in your life one of the first steps you would like to take is to change your will to allow your child to receive a portion of your estate once you pass on. This is a happy change but one that you will need to think through as far as how to manage the change and go about making it happen. 

Still, in other situations, you may also need to make relatively minor changes to the will. Switching one beneficiary out for another after learning that your younger sister instead of your older sister is the one who liked that antique lamp that sits in your bedroom. For changes like this, a codicil may be just what the doctor ordered. Changing your entire will and drafting an entirely new document may seem excessive to you to take into account one small change that you want to see in your document. As a result, a codicil may make a ton more sense to you. 

One thing that I would tell a client would be to keep your codicil and your will together once the codicil is complete. Taken individually both the codicil and your will would not be the true expression of your intent as far as how you want your property to be distributed after your passing. As a result, you should keep the codicil in the same place as your will. That way your executor can read through everything at least once to better understand what he or she is working with. 

That reminds me- make sure that your executor knows what it is in your will. He or she is the person who will be walking your estate through the distribution process and possibly through probate. Do not force him or her to go into that process blind. Rather, you should talk to him or her about being your executor before officially naming him or her as such. Additionally, you can talk with him or her about your wishes. If the executor has questions about what something means in your will, then it could indicate that you either need another codicil or the language in your will is not specific or clear enough and invites legal battles over your property. 

While you’re at it, it probably makes sense for you to speak to the people in your life about what your will says. It is better for you to make sure everyone is on the same page now and to address any issues directly to you rather than coming to the executor about it. For one, the executor is just there to do their job. Second, you can avoid a lot of heartache and anger after your passing if you discuss the will with your family now. Sit down and read through the will. I don't mean that you should just sit there and take a verbal onslaught from an angry relative. However, you should make clear to people where you stand and allow them to see what their actions have done and what the consequences are. 

Should you draft a new will or a codicil?

The more significant the change is that you are considering the more you will need a new will rather than a codicil. A codicil is like a sticky note and your will is like a notebook. Simply making your will a mish-mosh of sticky notes within a notebook doesn’t accomplish much as far as clarity. Since you won’t be around to explain any misunderstandings about your will it is best to eliminate those misunderstandings whenever possible. When it comes to making your will as clear as can be, a codicil may be ok in small doses but if the material you are changing is substantial enough then your best bet is probably to draft a new document. 

The thing about changing a will is that the changes you make are likely to confuse at least some people. Don’t risk some of those people being relatives of yours or a probate court judge. Clarity is key when it comes to estate planning. I think providing a great deal of information in your will or codicil is what will ultimately provide you with the most benefit. Explaining why your will says what it does or why you left a family member out of your will can be a tough conversation to have. However, if you can share this information before your passing you stand a better chance to have peace of mind in your life. 

You can speak to one of the experienced estate planning attorneys with the Law Office of Bryan Fagan if you have any questions about the material contained in your will or how to structure a new will. Codicils can make your situation easier by not having to draft an entirely new will every time you come across something minor that you want to change. Depending upon your current circumstances you should look into both options, alongside an attorney that can help you and your family plan for the end of life circumstances. 

Questions about the material contained in today's blog post? Contact the Law Office of Bryan Fagan

If you have any questions about the material contained in today's blog post, please do not hesitate to contact the Law Office of Bryan Fagan. Our licensed estate planning attorneys offer free of charge consultations six days a week in person, over the phone, and via video. These consultations are a great way for you to learn more about the world of Texas estate planning law as well as about how your family circumstances may be impacted by the filing of a probate case.

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