What is a codicil?
A codicil is a document that modifies or updates your last will and testament. A properly-executed codicil will update your will without you having to go through the trouble and expense of making a whole new will. In Florida, a codicil can be used to alter a will, republish a will, or even revoke a will.
Codicils are only required if you already have a will and need to make some sort of change to it. Codicils are commonly used to change beneficiaries or the personal representative, but a codicil could be used to change nearly anything in a will.
What are the requirements of a codicil in Florida?
A codicil requires same formalities as will. This means that the person executing the codicil will need to sign it in the presence of two witnesses who also sign the codicil in the presence of each other and in the presence of the person executing the codicil. It is also a good idea to include a self-proving affidavit with the codicil, although that is not technically a requirement.
Does a codicil need to be notarized in Florida?
No, a codicil does not need to be notarized. A codicil only needs the proper testator and witness signatures. However, most codicils also have a self-proving affidavit attached, and that affidavit does require notarization. The reason for using the affidavit is to make the codicil easier to be admitted into the probate court after you pass away. The affidavit is so commonplace that it is rare to see a will or codicil without the affidavit. Thus, notarization is not a requirement for codicils, but most codicil executions involve the use of a notary anyway.
How is a codicil revoked?
A codicil can be revoked in writing or by physically destroying the codicil with an intent to revoke. Most commonly, a codicil is revoked by a later-written will. Most wills contain a statement that revokes all prior wills and codicils. Including a revocation in your will is an example of a written revocation.
Revocation of a will revokes all of the codicils used to update that will. Thus, a codicil will never be left stranded without the original will to back it up. However, the same is not true if a codicil is revoked! The revocation of a codicil does not revoke the original will. This means a codicil can be added to a will and then later revoked, resulting in the will simply being enforced just like it would have been before the existence of the codicil.
Can a codicil be used to revoke a will?
Yes, you can use a codicil to revoke a will. All or part of a will can be revoked by a properly-executed codicil. This can be done by simply stating that the prior will is revoked. Or it can be done by contradicting the offending provisions of the old will. Florida courts will interpret the contrary portions of the old will as being revoked. However, the safest course of action for revocation is almost always to clearly, directly, and plainly revoke the prior will in writing without relying on the court’s interpretation of contradicting codicil statements.
Does a will codicil have to republish the old will?
Yes, a will codicil republishes the old will. After the execution of the codicil, the will is treated as being executed on the day of the codicil execution.
This may seem like a small, unimportant change, but in some cases this small change can have large ramifications. Let’s take a look at an example to see one such scenario play out.
Imagine that Tammy executed a will five years ago naming her brother Sam as personal representative. Two years ago she had a son named Benjamin. Tammy now wants to update her will because she wants to change the personal representative to her sister, Lauren. So, she executes a codicil changing the personal representative. Before the codicil, Benjamin would have likely been considered a pretermitted child (a child accidentally left out of the will) and would have still been given his intestate share of Tammy’s assets. But after the codicil execution, Ben will likely receive nothing. This is because the codicil changed the date the will was published! The courts now will likely assume that Tammy intentionally left Benjamin out of the will. Thus, it is important that the person executing the codicil think through all the ramifications of the new publishing date.
Challenging a Codicil
Just like a will, a codicil can be challenged after the death of the person who executed it. For example, a codicil might be challenged because of allegations of undue influence or incapacity. Thus, it is important not only to execute the codicil properly but also to take steps to attempt to ward off potential litigation that might challenge your estate plan.