Free Codicil to Will

A Codicil is a document used to change one or more provisions of a Will as an alternative to preparing a new Will. If substantial or numerous changes are required, consider preparing a new Last Will and Testament instead of a Codicil.

The codicil is a simple but flexible document that provides a variety of optional paragraphs. If your situation presents unusual circumstances, or if you have any legal questions, it is advisable to consult with a lawyer.

If a bank's trust department or other institution is selected as the Executor or Trustee, it is usually understood that they will charge a fee for their services. However, if a family member or friend is chosen, there may be some dispute whether you intended for that individual to receive compensation for his or her services.

This optional power clarifies your intent by stating that the Executor and Trustee are entitled to reasonable compensation for their services, and are entitled to reimbursement for out-of-pocket expenses incurred in the performance of their duties as Executor or Trustee.

The definition of digital assets is broad and can include any online accounts or files stored on a computer or server. For example, these can all be considered digital assets: email accounts, blogs, social-networking websites, online backup services, photo and document sharing websites, financial and business accounts, domain names, virtual property, and computer files.

While digital assets are mostly considered intangible personal property - without a physical essence - some people also consider them to be tangible personal property, such as when you print out an email and can physically touch the printout. Examples of intangible personal property include: a patent or copyright, an amount of cash, or business interests in a privately held corporation or partnership. Examples of tangible personal property include: jewelry, vehicles, or household furnishings.

A "Digital Executor" is the person or organization named in a Will who has the responsibility of carrying out the terms of your digital assets in the Will. Those responsibilities include, but are not limited to, the management, distribution, or termination of your digital assets. Generally, this allows the Digital Executor to access, download, and backup digital assets, convert file formats, access necessary digital devices, and clear computer caches and/or delete files. The Digital Executor should be trustworthy and technically savvy.

Inventory all of your digital assets in "Schedule A" and the "Letter of Instructions" in this Will. Notify your designated Digital Executor and anyone else important to your digital estate of your wishes and also inform them of where your Letter of Instructions is located.

*Note: While this Digital Executor provision makes your wishes known as to your digital assets, the area of digital estate planning is a relatively new field of law and there is no guarantee that your wishes can be fully implemented. For example, online accounts are usually governed by the "terms of service" agreed to when the account is opened, and may prevent your Digital Executor from accessing or managing the account. Also, your digital rights to some of your online accounts may expire upon death and prevent account access by your Digital Executor.

Therefore, it is important to research the rights and issues that may impede your Digital Executor from carrying out the terms of your digital asset wishes. For example, which websites will or will not allow account access to designated executors, what authorization is needed, if you have legal permission to access online financial accounts, and whether state law requires your Digital Executor to reside in the same state as you. We suggest that you consult an estate planning attorney to incorporate your digital assets into your Will.

Disinheriting means to deprive another person (an heir or spouse) of property that would have been distributed to that person under the laws of intestacy (dying without a valid Will).

It is the general practice for a person to provide for distributions to his or her family, particularly to his or her spouse (if married) and children (if any), or in the case of a deceased child, such child's children (if any). Such persons are said to be "the natural objects of the Will writer's bounty."

If such persons exist but are not included in the Will, a question may arise as to whether you as the Will writer simply made a mistake. Further, such excluded persons may attempt to challenge the Will on this very basis, that is, that you simply made an error in excluding them from the Will.

If you intend to exclude someone that might expect to be included in the Will, it is advisable to include a statement in the Will that makes it clear that the omission was intentional. Although this type of exclusion generally applies only to individuals, this provision can also be used to list organizations that will be excluded.

In order for your codicil to be valid, it must clearly identify the Will that the codicil will be changing. The reference to the date that your Will was signed helps identify the Will that is being changed. The use of a term such as "First" Codicil or "Second" Codicil makes it clear whether there are prior codicils that must also be considered.

For example, you could have a Will dated January 15, 1990, a First Codicil dated June 26, 1992 that changes your executor and one beneficiary, and a Second Codicil dated July 18, 1998 that changes your executor again. At the time of your death, all three of these documents together would represent your total Will.

The Letter of Instructions should include all the necessary information a Digital Executor needs to manage, distribute, and terminate your digital assets. It should include: names of accounts/websites/devices, usernames, passwords, and any other access information. In addition, include instructions on how you want the digital asset administered, such as if you want the account memorialized or closed, any time-related conditions pertaining to deletion of inactive accounts or payments due, monetary or business implications, or anything else you want the Digital Executor to know.

1. This Codicil should only be used to change one or more provisions of a Will which has already been properly signed.

2. This Codicil is not valid unless it is signed by a Will writer who is of "sound mind". Being of "sound mind" requires that the Will writer: (a) know that he or she is signing a will (codicil), (b) know the general nature and extent of his or her property, and (c) know the descendants or other relatives that would ordinarily be expected to share in the estate.

3. If the Will writer is unable to sign due to physical disability, another person may be able to sign on behalf of the Will writer, in the Will writer's presence, and at the express direction of the Will writer. However, this document does not provide the necessary language for another person to sign for the Will writer. For assistance with this procedure, a lawyer should be contacted.

4. The Codicil should be signed by the Will writer in the presence of three DISINTERESTED adult witnesses and a notary public. Many states require only two witnesses, but the signature of a third witness provides some protection against the possibility that one of the witness signatures will be invalid for some reason. For example, a person should not be a witness if that person is a beneficiary under the Will or the Codicil. In most states, if a beneficiary's signature is counted in order to satisfy the minimum number of witnesses, then the Will or Codicil is not necessarily invalidated, but that "interested witness" may not receive a share of the estate any larger than if the Will writer had died without a will.

5. All of the witnesses must watch the Will writer sign this Codicil. The Will writer should verbally declare that the document is intended to be a Codicil to his or her Last Will and Testament, but the witnesses need not read the Codicil or know of its contents.

6. Each witness must sign his or her name with the Will writer and the other witnesses present. The witnesses should be satisfied that the Will writer willingly signed the document as his or her free and voluntary act, and that the Will writer was of full age and sound mind.

7. The Will writer should initial on the bottom margin of each page of the Codicil. This is done to prevent the later substitution of pages.

8. The self-proving affidavit ("Proof of Will" in some states) is a document which should be attached to the end of the Codicil, and which contains the Will writer's acknowledgement and the affidavit of the witnesses, made before a person authorized to take acknowledgements and administer oaths. The affidavit recites that the requisite formalities were observed in signing the Codicil. Although attaching the affidavit has nothing to do with the legality of the Codicil itself, it can speed the admission of the Codicil to probate after the death of the Will writer because it eliminates the need to have a witness appear at the probate proceeding to testify that the formalities in signing the Codicil were followed. The witnesses may not be available later when they are needed. A self-proved Codicil may be admitted to probate without additional witnesses or affidavits, but it is still subject to contest on such grounds as undue influence, lack of testamentary capacity, or prior revocation. In most cases, this affidavit should be signed and attached to the end of the Codicil. Some states do not recognize the self-proving option. However, including the affidavit in those states will not invalidate the Codicil.

9. The date should be filled in wherever requested, using the date on which the actual signing takes place. This step could become essential to the validity of the Codicil.

10. The number of total pages in the Codicil should be indicated, including the page(s) on which the witness signature lines appear. The page with the affidavit, if included, should not be counted because the affidavit is not a part of the Codicil itself.

11. The original copy of the Codicil should be kept with the Will in a secure location such as a safe deposit box at a bank, because only the signed originals can be probated. A second set could be kept in the Will writer's home files. The Will writer may wish to provide a copy to his or her lawyer, or possibly to the person named as executor or trustee. However, before distributing such copies, the Will writer should consider that it may become awkward to retrieve them later, if the Will writer decides to modify the Will or Codicil and/or change the designation of executor or trustee.

12. In most states, the Codicil cannot be changed by adding, deleting or modifying words on the face of the Codicil. Such changes are usually disregarded. The Codicil can be amended by signing another codicil to the Will, but this method is not recommended. If additional changes are desired, it is recommended that the Will and Codicil be revoked by signing a new will which expressly revokes the former will. For example, if the Will writer marries or divorces after the Will is signed, he or she should make and sign a new will.

A sole Digital Executor serves alone. Alternatively, you can nominate any number of persons and/or organizations to serve together as Co-Digital Executors. All actions taken by Co-Digital Executors must be unanimous. Therefore, difficulties and/or delays are sometimes encountered if:

• a. the Co-Digital Executors reside some distance away from each other and documents to be signed must therefore be circulated among them, or
  
• b. if the Co-Digital Executors are unable to unanimously agree on some course of action.

On the other hand, there are also some advantages to naming Co-Digital Executors. A parent may name both of his children in order to avoid the perception that one child is being favored over the other.

Also, it might be preferable for two Digital Executors to work together to co-manage your digital assets, drawing from each individual's strengths and weaknesses.

Finally, if state law requires that at least one Digital Executor be a resident of your state, you may want to add a same-state Co-Digital Executor to serve.

This document allows you to make three types of changes to your Will. First, you may wish to simply delete a provision, without including a replacement provision. For example, you may wish to delete a specific bequest that originally provided a $1,000 bequest to your nephew, John.

Second, you may want to delete a provision in favor of a substitution. For example, you may wish to substitute your sister as your first choice for executor, replacing your father as your original choice.

Third, you may wish to simply add a provision. For example, "Article III � Specific Bequests. I give $1,500 to Mary Jones, of Jackson, California."

The Codicil should be signed by the Will writer in the presence of three DISINTERESTED adult witnesses and a notary public. Many states require only two witnesses, but the signature of a third witness provides some protection against the possibility that one of the witness signatures will be invalid for some reason.

For example, a person should not be a witness if that person is a beneficiary under the Will or the Codicil. In most states, if a beneficiary's signature is counted in order to satisfy the minimum number of witnesses, then the Will or Codicil is not necessarily invalidated, but that "interested witness" may not receive a share of the estate any larger than if the Will writer had died without a will.