Texas Codicils

Many people view estate planning as a static process.  They secure the recommended checklist of estate planning documents and assume they are forever done with estate planning.  However, estate planning is a dynamic process which requires attention in order to reach the desired outcome.  Constant changes in the law, particularly in regard to Medicaid planning, and changes in family relationships require the wise to periodically revisit their estate plan to ensure it still meets their needs and goals.  In fact, most estate planning attorneys recommend clients review and consider revising their estate plan every three year to five years.

In order to avoid the time and expense associated with executing a new estate plan, many people look to a codicil.  A codicil is an instrument which amends a previously executed will.  A codicil is executed with the same formality as a will, but modifies, deletes or qualifies language contained in the will. 

A codicil can be very advantageous for minor changes to a will.  For example, if the nominated executor in your will passes away, you may wish to execute a codicil to update your first, second and third choices for nominated executor. 

For anything other than minor changes, although it is legal to use a codicil, it may not be advisable or practical.  A codicil is a separate document from your will.  It is possible you may lose the codicil or misplace it where it is not found upon your death.  Even if you store your will and codicil together, there is no guarantee they will remain together or be presented to the court together (assuming probate is needed).  For example, lets say John Doe (John) executes a will leaving everything to his children.  He subsequently meets a woman, and although he does not marry her, he executes a codicil to his will leaving everything to his new woman friend.  John does not mention this codicil to any of his family or friends.  John dies and his children locate his will and codicil.  His children decide the codicil is not what John would have wanted and throw it away.  They then proceed to probate the will, which leaves everything to them.  This hypothetical illustrates the danger of a codicil and why it should not be used for substantial changes to a will.

Several life events require estate plan re-examination, but that are too significant for a codicil include, but are not limited to: 

• You get divorced
• A beneficiary or a named party in your will divorces
• A beneficiary or a named party in your will dies
• You adopt or have a child
• A beneficiary adopts or has a child
• You anticipate the need for long term care services in the future
• You inherit a large sum of money
• Your net worth increases substantially
• One of your named beneficiaries becomes incapacitated or disabled
• You become disabled

Just because one of these events occurs, does not necessarily mean you must re-execute your estate plan, however it is best to check with your attorney to make sure your plan still meets your goals.  It is worth it to spend the extra money to have a periodic review of your plan, and if necessary properly re-execute your estate plan, rather than relying on a codicil.  You have worked hard your whole life to build a legacy for your family, so make sure the legacy is distributed exactly according to your wishes.