Estate planning for Michigan residents has become more user friendly over the past few years with the introduction of the Michigan trust Code (MTC) in 2010 and the Estates and Protected Individuals Code (EPIC) in 2000 it is clear that individuals have more power in preparing their own estate planning documents. Despite the more user friendly law, one thing remains clear-in order for changes to be effective they most clearly state the trust maker or testator’s intent.
Many individuals think that once they have created an estate plan, they are protected for their lifetime. Unfortunately, that is incorrect. Estate plans need to be updated every three years, or after any major life event or death. Whether to update an entire estate plan, or simply execute a codicil, depends on the circumstances.
A codicil is an amendment that may change a provision in, or add new material to, an existing will. A codicil must meet the same statutory requirements that apply to will executions (i.e. signed by the testator, witnessed by two individuals, etc.) Otherwise, no specific form is required. However, because the codicil is only an amendment to the will, certain problems arise in terms of integration. The codicil must be read and interpreted in the context of the entire estate plan, so it must be consistent; otherwise, it will cause confusion and ambiguity, and may defeat the testator’s wishes. A codicil should identify the will being amended by date of execution. Each amendment should be long enough to be read coherently on its own. For example, rather than changing one sentence, it is best to re-write the entire paragraph.
When a testator signs a codicil, he or she is deemed to have restated all of the unchanged provisions of the will. This implied restatement is commonly referred to as republication of the will. Nevertheless, the testator should state explicitly that the balance of the prior will is ratified and confirmed.
A codicil may be simultaneously executed and attested, and both the codicil and the original will made self-proved, by acknowledgment of the will by the testator and two witnesses’ sworn statements in front of a notary public. As an alternative, a codicil can be made self-proved without the presence of a notary if the testator and two witnesses sign written statements declaring under penalty of perjury the facts regarding the testator and the formalities observed at the signing of the will.
In conclusion, codicils have the potential for creating confusion and error. This suggests that codicils should be used only when making very simple changes to wills, such as when a testator wants to change the guardians for minor children or change the personal representative. Otherwise, and more frequently, it is best to update your entire estate plan.
Easy enough? It can be is you call SMDA Law at either 1-(866) 529-3537; in Metro Detroit (586) 264-3756; or, in West Michigan, (616) 931-3670.