Our Delaware estate planning attorneys assist people to draft and execute Wills and other estate planning documents. If you don’t have a Will, you should make one with our assistance. If you have a Will already, but it has been some time since you reviewed it with an attorney, you should review it to make sure that still expresses your wishes. If it doesn’t, we can help you fix it with a Codicil.
Why Would I Need a Will?
The BIG IDEA: The reason you get a Will or use a Codicil is to minimize the chances that anyone is going to have an argument over your last wishes. If you have two or more family members who can’t agree on what you wanted to happen to your assets after your death, they may get into litigation. Estate or probate litigation is often protracted and expensive. The big idea behind a Will or Codicil is to minimize the likelihood of litigation by making an orderly and indisputable plan for distribution of your assets after you are gone from this life.
What Can a Will Do?
A Will is a written legal instrument that makes provision for distribution of your assets upon your death. But a will can do so much more than that.
A Will can give a family member or friend the right to live in a home but then transfer possession or ownership to another. For example, let’s say you own a second home and let your cousin live in it. You can allow your cousin to reside in that home after your death, but have the home pass to your child instead of your cousin’s child upon your cousin’s death.
A Will can contain a Trust that will carry on your good deeds after you pass. Your Will could contain provision for a Trust that funds a charity or a scholarship for years or decades after you pass. Or your Will can establish a Trust for the care of your minor children.
A Will can exclude a family member from receiving your assets. No one wants to “cut someone out of their will”, but in this day and age where so many people suffer from alcoholism, drug dependence, gambling addiction, and other troubles, it may make sense from a preservation-of-assets standpoint to make other provisions for beloved but untrustworthy family members who are likely to fritter away the assets or equity you have worked hard to accumulate over your lifetime.
A Will can name the person you want to serve as Executor of your estate after your death. The Executor of your Estate is the person who distributes your assets to your intended beneficiaries and who settles the claims of your creditors.
A Will can name the person or people you want to look after your minor children after you pass.
And there are so many other things you can do in a Will.
What does a Codicil do?
A Codicil is a shorter document used to make changes to a Will. The Codicil follows all the same formalities as a Will but it is used to make changes when changes need to be made without redoing the entire Will. For example, let’s say that the person you named as your Executor was transferred to a new job across the country. If you pass away, it’s going to be very hard for him to attend to the winding up of your affairs. So you want to name a new Executor. You absolutely should not hand-edit your will. You should meet with an attorney and have a new Codicil prepared to officially and legally make the change.
Codicils can be used for other changes as well. Let’s say you gained new family members through marriage and want to make gifts to your step-sons. Or let’s say you lost family members through divorce or death and want to eliminate bequests in your Will. You might use a Codicil to effect those changes.
The most important thing to know is that you never want to make the changes in a hand-written note left with your Will. And you never want to make edits to your Will. By doing that, you are creating something for your family to fight over after your death. If you need to make changes to a Will, get an attorney to do it in a Codicil.
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