Will Amendments or Codicils
Serving You and The State of Florida
Keeping your will updated is vital in ensuring your estate is distributed according to your wishes. Many people put off will updates when they are young and healthy, but wills should be updated after every significant life change or after accumulating substantial wealth and property; this way, you can prevent complications down the line.
Amending a will is easier than ever nowadays, but legal language can be complex and confusing. The lawyers at the Lopez Law Group can guide you through any will amendments you need to make sure your loved ones are taken care of when you are no longer here.
Why is it Important to Amend and Update My Will?
In the most basic sense, a will ensures your assets are protected and will go to your loved ones when you pass. However, wills can offer a lot more than simple asset distribution.
Wills are essential for those with children, especially if those children are minors. A will allows parents to name a legal guardian to take care of their child if they die early. Failing to add a child as a beneficiary or failing to name a guardian leaves your child with an uncertain future.
Similarly, parents may wish to establish a trust fund for minor children and can do so via a will. That way, the parent can have more control over when their child receives the inheritance and how they spend it.
Do I Need a New Will if I Want to Make an Amendment?
You can amend a will in one of two ways. You can either create a new will altogether or create a separate document known as a codicil. In most cases, creating a new will is the best option, as technology has made it easier than ever to draft a new will quickly.
What is a Codicil?
A codicil is a legal document separate from a will but prepared similarly. Codicils allow testators to change the conditions of their will or add further stipulations without having to reproduce the will. Codicils can be handy for minor changes to a will, such as adding a beneficiary or naming a personal representative of the estate.
According to the doctrine of republication, a codicil can republish a will if it meets certain requirements. When a codicil is created, the existing will may be given a new date which will be the same as the codicil’s publication date. If a codicil explicitly mentions a formerly invalid will or codicil, those invalid documents may become valid.
A codicil can also be revoked in the same manner as a will, either by shredding, destroying, or creating a new will or codicil to replace it.
While codicils are useful in some cases, the practice is infrequent. Codicils originated in the 1800s when changing a will meant that it would have to be rewritten completely by hand. Codicils were a way to circumvent a tedious and lengthy rewriting process.
Nowadays, codicils do not offer much of a shortcut. Florida law requires that codicils be created following all of the same formalities as will preparation. Therefore, creating a new will altogether is not much more effort.
If a codicil fails to meet the requirements listed under section 732.502 of the Florida Statutes, the codicil will be deemed invalid. Under Florida law, a codicil must:
- Be signed by the testator or another person at the direction of the testator
- Be signed by at least two witnesses with the testator present
Codicils can be challenged just the same as a will can. An individual can argue that the codicil was created under undue influence or that the testator lacked mental capacity when creating the will.
Moreover, by virtue of being a separate document, codicils may offer less security. A codicil document may be misplaced or neglected, leading to confusion and contention over who gets what when the assets are being distributed. For this reason, codicils should only be used to make minor amendments to a will.
When to use a Codicil and When to Rewrite the Will
Creating a new will is generally the best route to take, especially if you make several changes to a will. However, if you wish to make a single change without completely reproducing the will, you can amend it using a codicil.
In general, codicils are perfectly fine for making any of the following changes:
- Changing an executor. You may want to change the executor of your estate if your preferred executor has passed away. You may also change your mind about who should distribute your assets when you pass.
- Changing a guardian. There are many reasons for changing a guardian. The named guardian may have moved, passed away, or been a relative or friend with whom you are no longer close. In any case, you will want to make the update as soon as possible and can do so using a codicil.
- Adding a beneficiary. Adding a new beneficiary such as a child or grandchild to a will is a simple process, so a codicil works fine for this type of amendment.
- Adding to or changing an existing bequest. For example, if your will bequeaths $10,000 to a beneficiary, but you wish to increase that amount, you can do so via a codicil rather than recreating the will.
It’s best to rewrite the will in the following instances:
- Disinheriting someone from the will. Removing a beneficiary from a will often lead to conflict between relatives and the will being contested. It’s best to create a new will in this case so that the codicil cannot be misplaced or contested
- Creating or changing a trust. Trusts follow complex regulations and details of a trust are often too great to be handled in a codicil. If you wish to create or change a trust, you will likely need to create a new will
- Making multiple changes. If you are making several changes to a will, it’s best to create a new will so that you will only have to go through the signing and witnessing process once. As mentioned, having several codicils can lead to some of them being misplaced or neglected, so it’s best to create a new will to avoid confusion.
You may also wish to create a new will for privacy reasons. If you make a change via codicil, beneficiaries of the will can still see all of the contents of the old will. If you are concerned a stipulation in the former will might cause disputes between beneficiaries, it’s best to create a new will.
Can I Make Hand-written Amendments to a Will?
It can be tempting to make a hand-written amendment to a will to save time and money, but like codicils often are, hand-written amendments to a will are a thing of the past. Technology has facilitated the will-making process so much that creating a new will altogether takes a similar amount of effort as a hand-written amendment.
Not only are hand-written amendments somewhat obsolete, but they are generally not recommended for security reasons. It’s easy to cast doubt on the validity of a hand-written amendment. If you fear that your estate is at risk of being attacked or contested, avoid hand-written amendments at all costs.
If the hand-written amendment is meant to certify a significant change, such as disinheriting a beneficiary, there is a good chance it could be challenged. Beneficiaries who are disinherited from a will are liable to attack the will and contest it in a probate court. Hand-written amendments only make it easier for them to cast doubt on the will’s validity.
Further, hand-written amendments don’t save much time anymore. Any hand-written alterations to a will still need to be witnessed by two independent parties, so it’s best to create a new will.
Do I Need a Lawyer to Make a Will in Florida?
In short, no. You can make a will on your own in Florida, but you may still want to consult a lawyer beforehand. Consulting an attorney is advisable under any circumstance, but especially if you foresee any complications happening, such as will contests.
Any significant additions to a will should always be handled by an attorney when possible. If you are creating a trust for a beneficiary or trying to keep your estate protected from specific individuals, an experienced attorney can ensure your assets remain safe. An attorney can make sure there are no loopholes in your will that may lead to it being invalidated or contested.
High-net-worth individuals will also want to go through an attorney. High-value estates are often contested and may come under attacks from creditors. An experienced estate attorney can add provisions to a will to help safeguard as much of an individual’s wealth as possible.
Do I Need to Update my Will if I Get a Divorce?
If you get a divorce in Florida, or if a court finds your marriage to be illegal, you do not have to make changes to your will. Florida law automatically cancels any stipulations in your will that leave property to your spouse or name your spouse as your estate’s personal representative when you get a divorce. The only time this rule does not apply is if you explicitly state in your will that divorce should not affect the terms of your will.
Can I Create My Will Electronically?
In some states, including Florida, you can create your own will using electronic software; this allows you to create and sign a will without printing it out. Electronic wills can be made in real-time using audio and video communication.
Under Florida Law, electronic wills must meet the following requirements:
- The testator and a witness must sign the will in print or electronically.
- A notary must supervise the process in accordance with Florida Statute 117.285.
- The witness must hear the testator state that they have signed the electronic will.
- The notary must verify the witnesses’ identities.
Florida law implements regulations to protect those creating a will electronically. Will makers must clearly demonstrate that they are not under the influence of drugs or alcohol and must make any long-term disabilities known if they may affect the will’s creation. If the will-maker does not meet the requirements, the process will be stopped, and virtual witnessing will no longer be an option.
Can I Alter or Revoke an Electronic Will?
In Florida, a Qualified Custodian is put in charge of an electronic will and will guard it until the testator dies. If a testator wishes to revoke their will, they must be present and state that they wish to:
- Delete the will
- Cancel the will
- Render the will unreadable
- Obliterate the will
A statement of any of the above is enough proof that the testator wishes to revoke the will. The Qualified Custodian must then comply with the request and perform one of the actions listed above.
Florida Estate Attorneys
If you need guidance on will amendments or codicils, call us today at 727-933-0015 for a free case evaluation. Our lawyers can help you create a will that will ensure your family is looked after when you pass.
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