To change a will in New York with a codicil, you create a separate written document that references your existing will, states the specific changes you want, and then execute that codicil with the exact same formalities required for the will itself under New York’s Estates, Powers and Trusts Law (EPTL) §3-2.1. That means at least two attesting witnesses, your signature at the end, a declaration that the instrument is part of your will, and witnesses signing within one 30-day period. A codicil that is not executed with these formalities is not valid — and that is precisely where most people go wrong. This guide walks through the process through a “mistakes-to-avoid” lens, because the costliest errors with codicils are quiet ones that surface only after death, in the Surrogate’s Court, when the testator can no longer fix them.
What a Codicil Is — and What It Is Not
A codicil is a formal legal amendment to an existing will. It does not replace the entire will; it modifies, adds to, or revokes specific provisions while leaving the rest of the will intact. Think of it as an official addendum that is read together with the original will at probate.
Codicils were historically popular for small changes — updating an executor, adjusting a single bequest, or adding a beneficiary — because rewriting an entire will by hand was burdensome. Today, with modern drafting, many estate-planning attorneys recommend a fresh will for anything but the simplest change. But codicils remain a legitimate and useful tool when used correctly.
What a codicil is not:
- It is not a casual note. You cannot scribble “I changed my mind, leave the house to my daughter instead” in the margin of your will and expect it to hold up.
- It is not a living will. A living will is a health-care directive about end-of-life medical treatment. A codicil concerns your property and takes effect only at death. Conflating the two is a common and consequential mistake.
- It is not self-executing. A codicil only takes effect at death and must be admitted, alongside the will, to probate in the Surrogate’s Court.
The Execution Rules Your Codicil Must Follow (EPTL §3-2.1)
Because a codicil amends a will, New York law requires it to be executed with the same statutory formalities as the will. Under EPTL §3-2.1, a valid will — and therefore a valid codicil — requires:
| Requirement | What EPTL §3-2.1 Demands |
|---|---|
| Witnesses | At least two attesting witnesses. |
| Signature placement | The testator must sign at the end of the document (or another person may sign in the testator’s presence and at their direction). |
| Publication | The testator must declare the instrument to be their will (or codicil to it). |
| Witnessing | The testator signs in the witnesses’ presence or acknowledges the signature to each witness. |
| Witness duties | Witnesses sign at the testator’s request and add their residence addresses. |
| 30-day window | Both witnesses must sign within one 30-day period (the law applies a rebuttable presumption that this requirement is met). |
If any of these elements is missing, the codicil can be challenged and rejected at probate. For a deeper walkthrough of these formalities, see our overview of New York will requirements and our guide to the will execution ceremony.
The Most Common and Costly Codicil Mistakes
This is the heart of the matter. The mistakes below are the ones we see derail estates most often.
1. Treating the codicil less formally than the will
The single biggest error. People assume that because a codicil is “just a small change,” it can be signed casually. New York does not see it that way. A codicil that lacks two witnesses, a proper signature at the end, or publication is invalid — and an invalid codicil can throw the validity of the underlying will into question, inviting a costly will contest.
2. Handwriting changes directly on the original will
Crossing out a name, writing in a new beneficiary, or initialing a margin does not legally change a New York will. These marks have no effect and may even create confusion or suggest tampering, which can trigger litigation among heirs.
3. Using a codicil for major changes
A codicil is best reserved for minor adjustments. If you are making sweeping changes — restructuring most of your bequests, changing your residuary estate, or revising your plan after a divorce — a new will is almost always cleaner. Layering multiple codicils onto an old will creates a confusing paper trail that contradictory provisions and ambiguities can exploit.
4. Forgetting that life events override your documents
A codicil cannot defeat a surviving spouse’s right of election under EPTL 5-1.1-A, which guarantees the spouse a minimum share of the estate regardless of what the will or codicil says. Drafting around a spouse without understanding this protection is a frequent and expensive miscalculation.
5. Losing or hiding the codicil
A codicil must be located and submitted with the will at probate. If it cannot be found, the original will controls as if the codicil never existed. Store the codicil with the original will, and tell your executor where both are.
6. Leaving the will and codicil contradictory
If your codicil changes the executor but a later clause of the will still names the old one, the documents conflict. Every codicil should clearly state which provisions it revokes or supersedes.
7. Letting it lapse into intestacy by accident
Revoking a major gift by codicil without naming a new recipient can leave property to pass by default — sometimes into the residuary estate, sometimes toward intestacy rules. When no valid disposition controls, EPTL Article 4 governs distribution to next of kin, which may be the opposite of what you intended.
Step-by-Step: Changing Your Will the Right Way
- Decide whether a codicil or a new will fits. For one or two minor changes, a codicil works. For anything broader, draft a new will.
- Draft the codicil in writing. Identify the original will by date, state the exact changes, and confirm that all unchanged provisions remain in effect.
- Execute it under EPTL §3-2.1. Sign at the end, declare it a codicil to your will, use two witnesses who sign within 30 days, and have witnesses add their addresses.
- Store it with the original will. Keep them physically together and tell your executor.
- Have it reviewed. An attorney’s review is inexpensive insurance against a six-figure probate dispute. Start with our will drafting overview and our guide to codicils and amendments.
Frequently Asked Questions
Does a codicil need to be notarized in New York?
New York does not require notarization for validity. What matters is satisfying EPTL §3-2.1 — two witnesses, signature at the end, publication, and the 30-day window. Many attorneys add a self-proving affidavit (which is notarized) to streamline probate, but that is supplemental, not the legal trigger.
Can I write changes by hand on my existing will?
No. Handwritten edits, cross-outs, or margin notes on an executed will generally have no legal effect in New York and can invite a will contest. Use a properly executed codicil or a new will.
How many codicils can I have?
There is no fixed limit, but stacking codicils is risky. Multiple amendments increase the chance of contradictions. If you are on your second or third codicil, it is usually time for a new will.
Does a codicil override my spouse’s inheritance rights?
No. A surviving spouse’s right of election under EPTL 5-1.1-A guarantees a minimum share regardless of your will or codicil. A codicil cannot disinherit a spouse below that floor.
Talk to a New York Estate Planning Attorney
A codicil is a powerful tool when executed correctly — and a liability when it is not. Because the same EPTL §3-2.1 formalities that govern your will govern your codicil, small mistakes can quietly void your changes and surface only in the Surrogate’s Court, when it is too late to fix them. The safest path is to have your amendment drafted and executed with the same care as the original will.
Russel Morgan, Esq. and the team at Morgan Legal Group help New Yorkers update their estate plans correctly the first time. Schedule a consultation today: book a 30-minute call with Russel Morgan.
Further reading from Morgan Legal Group: New York will execution requirements.