A New York Estate Plan Can Utilize a Codicil to a Last Will

New York Estate Lawyers are familiar with the need for individuals to establish an estate plan. A good plan for an estate should include a Last Will, Living Will, Health Care Proxy and Power of Attorney. In some cases, it is also a good idea to create a Living Trust.

The documents that comprise the plan should be reviewed periodically.  A creator of the papers may want to change the beneficiaries or the nominated executors or trustees.  Also, persons who are beneficiaries or fiduciaries may become ill or die and thus their selection in the papers is not appropriate for the plan.  

In the event changes are to be made to a Last Will, it is typically a good practice to prepare a revised Last Will in its entirety and to have it executed in accordance with the formalities required in Estates, Powers and Trusts Law (“EPTL”) section 3-2.1 which is entitled “Executor and attestation of Wills; formal requirements”.

Sometimes, instead of preparing and executing a new Last Will, an estate attorney uses a Codicil to modify the Will that already exists. EPTL 1-2.1 defines a codicil as “A codicil is a supplement to a will, either adding to, taking from or altering its provisions or confirming it in whole or in part by republication, but not totally revoking such will.”

While the use of a Codicil may seem easier than preparing a whole new Will, there are a number of problems that can arise. To begin with, the language of the Will and Codicil when read together may be confusing or conflicting. Additionally, instead of just one document to have for safe-keeping, the use of a Codicil or Codicils requires that all of the papers be safely stored for eventual probate.

An example of problems that can arise when using a Codicil was presented in Matter of Kim.  In Kim the decedent had prepared and signed a Codicil to a Will at the U.S. Embassy in South Korea.  The Codicil provided that it amended the original Will by directing that the decedent’s New York condominium be sold and the proceeds be held in a trust for the decedent’s granddaughter.  As it turned out, the Will could not be found.  In a decision by Manhattan Surrogate Rita Mella dated September 29, 2014, the Court found that the Codicil was properly executed and that the Codicil could stand on its own to effect the distribution of the condominium even though the Will that it was intended to amend could not be located.

As can be seen from Kim, it is generally better to avoid Surrogate’s Court litigation by revising and signing a new Will. This eliminates having multiple documents all of which may need to be located. Fortunately, in Kim the Court was able to give full effect to the Codicil nothwithstanding the loss of the original Will.

I have prepared many Last Wills and other estate planning papers for clients and generally prefer to create a new paper that is all encompassing and clearly states the creator’s intentions as one whole instrument.

An experienced New York trusts and estates lawyer can assist with guidance for proper Will preparation and execution and Will contests. New York Probate Attorney Jules Martin Haas, Esq. has been representing clients in New York in Trusts and Estates matters and Surrogate’s Court proceedings throughout the past 30 years in Suffolk and Nassau and other counties. If you or someone you know is involved with or has questions about a New York estate matter, please contact me at (212) 355-2575 or email: jules.haas@verizon.net, for an initial consultation.

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