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Questions and Professional Answers

Questions and Professional Answers

  • Wills and Codicil

    If a will was mutually drawn up and signed by two people, can one person add a codicil without the other person's knowledge or signature? Is that codicil valid if the party who was unaware of the codicil dies first?
    • Re: Wills and Codicil

      no

      David Slater
      David P. Slater, Esq.
      5154 Windsor Parke Dr.
      Boca Raton, FL 33496
  • Can a codicil modify a trust?

    My brother had both a will and a trust, and then signed a handwritten codicil before he passed. The codicil mentions all assets and excludes my sister who is a beneficiary in both the will and the trust. I was under the impression the will and trust are two separate documents, so would the codicil modify the trust thus excluding her from both?
    • Re: Can a codicil modify a trust?

      You are correct that they are two different instruments. To be part of a Trust, real property must have its title transferred to the Trust, which means it is no longer owned by your brother. Therefore, it is not part of his estate when he dies so what his Will says is irrelevant [Trust are set up in part to reduce the assets in the estate s less in the way of estate taxes are paid]. A Will can only effect how a transfer occurs as to property owned by the deceased right at the time of death. The fact that a major portion of the codicil is ineffective does not prevent the rest of its terms from being applicable. So your sister does appear to be excluded from getting any of the property, assets not in the Trust.

      George Shers
      Law Offices of Georges H. Shers
      4170 Glenwood Terrace, Suite #1
      Union City, CA 94587
    • Re: Can a codicil modify a trust?

      Yes, the will and trust are two separate documents. You CAN generally modify either one. A codicil typically refers to addition to or modification of a will. Of course, what effect the codicil might have will depend upon what assets were already held by the trust versus what assets were NOT held in trust.Depending upon the amount of assets that were owned by your brother I think you should consult with an attorney and have the documents reviewed to determine the likely effect, if any, of the codicil.

      J. Caleb Donner
      Donner & Donner
      910 Hampshire Road, Suite R
      Westlake Village, CA 91361
  • Codicil

    Are there any legal steps one can take against a lawyer if the lawyer was instructed to add a codicil to a will, which was heard by 5 people, and the person who's will it is dies before the codicil is signed?Thanks.
    • Re: Codicil

      If the codicil was not "executed" (signed) by the deceased during his/her lifetime, it is not valid and not enforceable. It is unlikely that a court would give effect to an unexecuted codicil. Why? The deceased may have had reasons that were not disclosed to anyone -- not even to the lawyer -- why he did not sign it. Courts are reluctant to second-guess the dearly departed.I hope this is helpful.Richard S. Stolker301-294-9500

      Richard S. Stolker
      Uptown Law, LLC
      110 N. Washington St., Suite 320
      Rockville, MD 20850
  • codicil to revocable trust

    Can one override the provision of the living trust concerning the distribution of the trust estate by adding a codicil?Is it enough to have a codicil signed by 2 witnesses without notary public certification?If this is not the case what legal action has to be taken?
  • Filing of a Codicil in the State of Texas

    If the original Codicil has been misplaced, can the photo copy of the Codicil be filed in the State of Texas?
    • Re: Filing of a Codicil in the State of Texas

      Possibly, but you will have to jump through some legal hoops, and it's up to the judge. Whenever an original document can't be found, there is a presumption that it was revoked by destruction of the original document. You'll need to overcome that presumption in court.

      David Leon
      David L. Leon, P.C.
      3500 Oak Lawn Ave., Ste. 205
      Dallas, TX 75219
  • can i contest a codicil for these reasons

    my mom died and i received her will a few days later i received a codicil. my mother was in the hospital due to a brain tumor called glioblastoma and did not have her full memory with her at the time of this codicil being sighned i read it and i saw that her signature was not familar to me at all then i noticed her last name was spelled wrong..im also out of the country do i have to be present if i retain a lawyer?? please i need some help i have lost my mother once and i feel like i am losing her again..thank you
    • Re: can i contest a codicil for these reasons

      You can contest this and present your proof in court. You do not have to be present to retain counsel, but should appear at the hearing. Good luck.

      David Slater
      David P. Slater, Esq.
      5154 Windsor Parke Dr.
      Boca Raton, FL 33496
    • Re: can i contest a codicil for these reasons

      NOTE: This communication is not intended as and should not be interpreted as legal advice. Rather, it is intended solely as a general discussion of legal principles. You should not rely on or take action based on this communication without first presenting ALL relevant details to a competent attorney in your jurisdiction and then receiving the attorney's individualized advice for you. By reading the "Response" to your question or comment, you agree that the opinion expressed is not intended to, nor does it, create any attorney-client relationship, nor does it constitute legal advice to any person reviewing such information, nor will it be considered an attorney-client privileged communication. If you do not agree, then stop right here, and do not read any further.Apparently you feel as if something is wrong with mom's will. Please understand that an ill person's signature often does not look like it did under better times. I recently had an individual sign his codicil to a will and he could barely write although he knew what he was doing. He simply lacked the strength.If you want to contest the will or codicil, you can hire and attorney to do so without being present but you may need to testify at a hearing or be available for a deposition at some point. Your attorney should be able to arrange it for a date and time convenient for you or to have you testify by telephone if necessary.Scott R. Jay, Esq.

      Scott R. Jay
      Law Offices of Scott R. Jay
      1575 Northeast 205th Street
      Miami, FL 33179-2133
  • codicil requirements

    can the trustee/executor of the will also be a witness to a codicil of a will? my uncle wants to make a minor amendment to his will. i am the trustee/executor. can i also be a witness? how many witnesses are necessary? does the attorney of the original will need a copy of the codicil? he prefers not to pay an attorney fee again and we were going to use the form from findlegalforms.com. is this all legal?
    • Re: codicil requirements

      Yes, anyone over 18 and of sound mind can be a witness, an Executor and even a beneficiary although it is ideal if you can get 2 witnesses who aren't named in the Will so that no one can claim you exerted "undue influence" over your uncle in his revising his Will. There should still be 2 witnesses and your uncle who sign in the presence of a notary; otherwise probating of the Will becomes more complicated.If the attorney is holding the original Will then he/she should also hold the Codicil also for obvious reasons. Otherwise you can give him a copy and it wouldn't hurt but you don't have to.Is it all legal? Ah, that is the $64,000.00 question. It certainly can be if you do it right. A slip up, even a minor one, however, can void the entire Codicil. Most attorneys don't charge much for a Codicil if they did the original Will. It depends on how much your uncle's estate may be worth when he dies and how sure you want to be that you get it right that will help you make your decision of whether to use an attorney or not is best for you.Good luck.

      Dale Lundquist
      (Solo)
      488 Glassboro Road P.O. Box 104
      Woodbury Heights, NJ 08097
  • Codicils

    1)What do I need to make a codicil I drafted to my willlegitimate?2) Where in the will should I include a wish to be cremated? Another codicil?
    • Re: Codicils

      A codicil must be created with the same formality as the underlying will. Thus, it must be in writing signed by the TESTATOR (you), in front of 2 witnesses who are competent (a notary is not absolutely required). The witnesses must see you sign in their presence for it to be valid. (You can do a self prover affidavit with a Notary, but that is a longer explaination). As to your second question, you may put cremation instructions in the codicil. It matters not where you put them. Many times, that may be done by instructions to the family with no will at all. Make sure that your main will is valid You signed in front of 2 witnesses who saw you sign. Becuase if yoiu have a valid Codicil but no valid will -- well its a long explain. Only the codicil will survive. Hugh Wood

      Hugh Wood
      Wood & Meredith
      3756 Lavista Road, Suite 250
      Atlanta (tucker), GA 30084
    • Re: Codicils

      I think this is too important for you to undertake by yourself. It should cost very little to consult a local attorney. You need to have the existing will reviewed in person.

      Charles W. Field
      Charles W. Field, Attorney at Law
      911 Duluth Hwy., Ste. D-3211
      Lawrenceville (north Atlanta), GA 30043
  • codicil of a will

    would it be legal for us to do a codicil to our will, our son died and we want to name our grandson to inherit our estate without going through expense of another will.
    • Re: codicil of a will

      My condolences on your loss.It is an EXTREMELY bad idea to ever use a codicil. When you use a codicil, you complicate probate and increase costs as two documents must be reconciled and probated.You don't save any money on drafting either. Since a codicil requires all the formality of a will, and must be carefully custom written, the fee would be the same as for a will (if we'd do one, which we will not).Our normal fee for a husband and wife simple will (one for each) is $250, and that includes a free living will for each party. (Complex wills and large estates are higher). If you're anywhere in Georgia and wish my assistance, please contact me for details.

      Glen Ashman
      Ashman Law Office
      2791 Main Street
      East Point (metro Atlanta), GA 30344
    • Re: codicil of a will

      If that is the only change, there is not much difference in the cost of a codicil and a new will (assuming the attorney who drew the original will still has it on his computer), and this gives one less document for your representative to find. A codicil is a document every bit as important as a will, and requires the same formality of signing (two witnesses, and preferably a notary to notarize an affidavit as to proper execution)You might also find that your original will provides for this situation, unless your son had more than one child, and you want only this grandson to inherit.The attorney who drew the will should be willing to review the will, to see if there is a need for a formal change, and you should get advice from an attorney on this point.

      Robert Thompson
      J. Robert Thompson Attorney
      309 Sycamore St.
      Decatur, GA 30030
    • Re: codicil of a will

      Of course it's legal!! It's also legal for you to do your own root canal. The question is: are you qualified to do either?

      Charles W. Field
      Charles W. Field, Attorney at Law
      911 Duluth Hwy., Ste. D-3211
      Lawrenceville (north Atlanta), GA 30043
    • Re: codicil of a will

      There is nothing illegal about adding a codicil to your will. However, it may be beneficial to approach the attorney that drafted your original and request that it be updated. This should cost significantly less than the cost of drafting the original will. I hope this helps.

      Joel Callins
      The Callins Law Firm, LLC
      811 Murrow Court
      Fairburn, GA 30213
  • Codicil

    I already have a will and living will from Florida. I now live in Georgia. I would like to made amendments to my will. Can a codicil be done even if my will is from a different state?I have very few admendments to make.
    • Re: Codicil

      Codicils are a terrible idea. Never ever use one. A codicil means that TWO documents, the will and the codicil, must be probated, increasing the expense and possibility of problems. ALWAYS change wills with a new will.(A codicil would be as much work as a new will, so it doesn't save money either).A will from another state is also a terrible idea. While it MAY be valid (I'd have to see it to know), it will not be optimized to simplify probate here (for instance it will not ference the Georgia code section that gives an executor dozens of powers).A new will is very inexpensive,so don't be pennywise and pound-foolish.Also, a non-Georgia living will might be problematic here too (although it may be fine - again I'd have to see it). Since I do a free living will for my will clients, cost isn't even a factor here. Replace it to be safe.Please call me if I can be of help with a new will. (You also may want to update your durable power of attorney at this time).

      Glen Ashman
      Ashman Law Office
      2791 Main Street
      East Point (metro Atlanta), GA 30344