Codicil or New Will: Which One Do You Need?

Can I just do a codicil or is an entire new will necessary? That is a question I am frequently asked. The answer is: it depends. Although that sounds like a non-answer, the truth is: it really does depend.

A codicil is a document that revises existing will terms, revokes sections of a will, or adds to the existing will. Once signed – and a codicil must be signed with the same formalities as a will – the codicil and will become one document. The codicil does not replace the will, it is added to the underlying will and both become the legal direction for the estate. A codicil restates the sections of the original will that have not be changed by the codicil – and therein lies the problem.

Because both the codicil and will are now the legal document, there is always the danger that some of the terms may be inconsistent. Unless the lawyer has also prepared the original will, they may be reluctant to prepare a codicil for the will. Even if they have prepared the will, most lawyers will encourage the client to simply start fresh with an entire new will. The danger of having inconsistent clauses, upsetting heirs, inaccurate or unintended bequests, outweighs the cost of doing a new will. Connecticut Junior Republic v. Doherty, 20 Mass. App. Ct. 107 (1985) (charitable beneficiaries possibly mistakenly replaced in second codicil were not entitled to recover since testator had read the codicil).


When a codicil may sufficient

Only if the changes are very minor.


When an entire new will should be done

– Change in Distribution Plan. The distribution of an estate is the very reason the will was done. When the distribution plan changes, a new will should be drafted. Once signed, the old will should be destroyed. Copies of the old will – if any – should also be destroyed. For this very reason, copies of a will should not be given to anyone. Clients change their minds, family dynamics change, and personal relationships may improve or deteriorate. If an heir has an expectation of an inheritance, based on a copy of an old will they have in their file, there will likely be a challenge to any new will that eliminates or reduces their expected share.

– More than One Codicil. If a first codicil has already been done, and more changes are needed, an entire new will should be done. Having two or three codicils that change specific parts of a will makes the probate process more complicated. It is also difficult to keep track of so many papers. Submitting a will to the Probate Court with a document labeled “Second Codicil,” is naturally going to lead to the question: “Where is the First Codicil?” If it cannot be located, the executor will have to seek instruction from the Court on how to proceed.

– Change in Executors. It may be that a change in executor can be done using a codicil. If the primary executor has passed away, or no longer wants the job, a codicil may be sufficient. On the other hand, some heirs look at being appointed executor as a sign of approval, and may not appreciate being replaced by a sibling. Further, an executor may be compensated for doing the job, and may feel it is their right to be appointed and paid. If that is the case, a new will should be done.

In almost every case, I feel a new will is the better way to go. A will is the document left behind that details the distribution of your estate. The wishes expressed should be clear, consistent, and hard to contest. Trying to use a codicil to alter such an important document can cause significant confusion and may lead to expensive probate litigation.

Financial Abuse of the Elderly: How to Spot It and Stop It

Despite the Elder Justice Act, passed in 2010, financial abuse of the elderly continues to be an enormous problem. In a follow-up study to research done in 2009, MetLife, with researchers from Virginia Tech and the University of Kentucky, released a report in June 2011, that shows financial abuse of the elderly remains rampant.(Download Full Report here)

Some key findings of the report:

-Fraud committed by strangers: 51%

-Fraud committed by family, friends, neighbors: 34%

-Fraud during holiday seasons (Thanksgiving to Christmas) was overall highest category.

-Women were twice as likely to be victims of fraud than men.

-Most victims were between 80-89 years old, lived alone, and needed some assistance with personal care or home maintenance.

-60% of the perpetrators of the fraud were male.

-An annual loss by victims of financial abuse is estimated at $2.9 billion dollars.

What Can Be Done to Protect Seniors?

In Massachusetts, the Executive Office of Elder Affairs (EOEA) has a hot-line setup specifically for suspected cases of elder abuse. That number is 1-800-922-2275. Reportable abuse includes suspicion of fraud or theft. Additionally, every city and town in Massachusetts has a state agency, created by the EOEA, designated to assist seniors. These agencies, called Aging Service Access Points, are the local representative for seniors and their families needing assistance. Click here to find the ASAP for your community.

Many times, the problem is that families are either unaware of the problem or are the ones actually committing the financial abuse. Another problem is that the senior may not even realize that they are a victim of fraud.

Knowledge Before a Crisis

This is the “ounce of prevention” method. Although it may be awkward to talk to an older relative about their finances, it is better to do this before a crisis hits home. ABC News reports that 94% of children have never spoken to their parents about their finances. Having this conversation will build trust and educate family members about the finances of the elder.
ABC News/Moneywatch link about how to talk with your older relatives about their finances.

Depending on each family, it may make sense to have two people involved in this conversation. If there is any possibility that a family member may not always act in the best interest of the parent, they should be excluded from the conversations. Encouraging the family member to record bank and financial information may also help open the door to conversations.

Practical Steps

There are some steps that can be put in place to protect the most vulnerable:
-Register the home telephone number with the Do Not Call Registry

-If there is in-home care – health aides, cleaning services, etc. – hire from a reputable company and make sure the company is insured and performs background checks on employees;

-Periodically check the mail coming into the house. If there are a large number of solicitations, it could be a sign that the person has been placed on a list of likely targets. If your relative agrees, maybe consider setting up a post office box to prevent this mail from even coming into the house. You can bring the mail to them and throw away the solicitations.

-Get the person a shredder and set it up for them. If they are unsure what to shred, have them make a pile that you can review and shred with them. Once they start shredding, it usually becomes an enjoyable habit!

-If the person is already a victim, report the fraud to the police, the bank, the Attorney General’s Office for your state, Better Business Bureau, and the person’s doctor.

Financial abuse of the elderly is a terrible problem, perpetrated by terrible people. There is just no single – or simple – answer. Family involvement, openness, and trust, may help protect from outside scammers, but could also contribute to fraud by a family member. However, having several family members involved with an older person, and building their trust, is a good start.

Additional Resources:
AARP Article: Tips for Avoiding Being a Victim of Fraud

AARP Article: Elderly Fraud Victims

Aging Care Article with Tips to Help Parents:

FBI Information on Common Fraud Schemes and What Actions to Take

Estate Planning and Elder Law Newsletter: Special Issue For Women

Every month I send an E-Newsletter that has articles on estate planning and elder law topics. If you would like to subscribe to this E-Newsletter please feel free to sign up.

This months topic is “Women: Law and Money.” Although many of the issues discussed in this issue also apply to men, there is one that research shows is much more common to women: The Daughter Syndrome. Throughout their lives, it seems that women are far more often the primary caretaker for loved ones. Whether it is children, parents, grandparents, or even a spouse, many women find themselves in a role of caring for others.

This issue of my Newsletter suggests three steps to surviving and planning while being the primary support for loved ones.

What Is “Aid and Attendance” and How To Qualify

Salute Flag.jpg

“Aid and Attendance” is a special pension benefit available to Veterans and their spouses to help pay for the cost of medical care. If the Veteran qualifies, they are entitled to receive a monthly check from the Department of Veteran’s Affairs. The VA itself has said that the Aid and Attendance Pension is an underutilized benefit, and that less than 10% of eligible veterans are currently taking advantage of the funds available to them.

Maximum Aid and Attendance Benefit for 2017:

Applicant Status/Maximum Benefit (2017)
Married: $2,127.00
Single: $1,794.00
Widow: $1,153.00

Qualifying for Aid and Attendance

There are several areas in which the Veteran must be found qualified.

1. War Time Service:

  • 90 consecutive days on active duty military service;
  • Better than a Dishonorable Discharge
  • Served at least one day of active duty during a war period. There is no requirement that this was in a combat zone.

2. Medically Qualified:

  • The Claimant must be certified by a doctor as needing assistance with activities of daily living (e.g. bathing, dressing, cooking, walking).

3. Financially Qualified:

  • Net Worth: There is no exact amount of assets that will automatically qualify or disqualify a Veteran. It used to be that if a married Veteran had less than $80,000.00 of Allowed Countable Assets, the VA would generally award Aid and Attendance. The amount now appears to be much lower, and is subject to the discretion of the VA. The VA itself defines what is countable for calculating net worth as: “such assets as bank accounts, stocks, bonds, mutual funds, and any property other than the veteran’s residence and a reasonable lot area.”
  • Income: The Adjusted Household Income must be less than the Aid and Attendance Benefit. Adjusted Household Income is determined by subtracting unreimbursed medical expenses (UMEs) from gross income.

A very simple example of how medical expenses can reduce household income: John, a Korean War veteran, and his wife Mary have total gross monthly income (social security, pension) of $4,051.00, and they have less than $40,000.00 of assets. Because of John’s health, they want to move to an Assisted Living Facility. The facility costs $6,000.00 per month.

Gross Income: $4,051.00
UMEs -$6,000.00 (other UMEs may also be added)
($1,949.00) Monthly shortfall
Since John and Mary’s UMEs are greater than their income, it is likely that they will qualify for A&A.

VA Aid and Attendance vs. Medicaid

Aid and Attendance is a special pension offered by the VA that helps Veterans pay for the cost of their medical care. A&A is intended to preserve and extend a Veteran’s assets by reducing their amount of out-of-pocket payments. Medicaid, on the other hand, pays for the entire cost of nursing home care after the applicant’s income has been given to the nursing home.

Currently, the VA does not have any look-back rules that restrict gifting of assets to reduce net worth, however, in 2016 the VA proposed enforcing a look-back period. The VA has not yet released the final rules on this proposal. Medicaid imposes a penalty for any assets that were given away within 60 months of applying for benefits. [WARNING: even though the VA currently allows gifting, there may be other consequences to gifting assets. Please do not transfer any asset until you consult with your attorney or tax advisor.]

Aid and Attendance is a pension benefit, and when the claimant dies, the benefit simply stops – there is no estate recovery or payback required. Medicaid, by law, must attempt to recover any amount paid on behalf of the applicant from their estate. On a practical note, since the applicant may have only $2,000.00 in order to qualify for Medicaid in the first place, there is generally nothing remaining that will ever need to be paid to Medicaid.

If a person receiving A&A moves to a nursing home, and is approved for Medicaid, the monthly benefit is reduced to $90.00 a month. Medicaid, however, does not consider this “income” to the applicant, so the $90.00 does not have to be paid to the nursing home.

A&A is a benefit that is often overlooked, and in many cases allows a Veteran and/or their spouse to remain living in an Assisted Living Facility when their assets would otherwise be depleted.

More information on Aid and Attendance:Veterans Pension Program

Eligible War Time Periods

Estate Planning and Elder Law Newsletter: Elder Law

Every month I send an E-Newsletter that has articles on estate planning and elder law topics. If you would like to subscribe to this E-Newsletter please feel free to sign up.

This months topic is “Elder Law Elements.” Elder Law, unlike many other areas of law, is centered on the needs of the client – not a specific area of the law. Elder law attorneys help clients with estate planning, protecting assets from the overwhelming cost of a nursing home, helping spouses when one may have to go to a nursing home, housing issues – even bankruptcy, which may be the result of a catastrophic illness.

Attorneys practicing in this area of law help guide clients and their families through some of life’s most difficult challenges.

If you would like to learn more about Elder Law services, please feel free to visit my website: Elder Law
Elder Law FAQs
Medicare and Medicaid Basics.

May is “Elder Law Education Month” in Massachusetts

Every year the Massachusetts Bar Association and the Massachusetts Chapter of the National Academy of Elder Law Attorneys co-sponsor an event for elder law education. This year, the topic is “Taking Control of Your Future – A Legal Checkup.”

Many of the area Councils on Aging request an attorney to come in and give a presentation. This year I will be at The Arlington Council of Aging on May 26, 2011, starting at 1:30.

The topics to be covered will include: Medicaid and protecting assets, Reverse Mortgages, Long-Term Care Insurance, and real estate tax exemptions and deferrals. I will also be happy to answer any questions about what documents you should have in place, the probate process, the difference between Wills and Trusts – whatever topics may be of interest. I hope to see you there.

National Health Care Decision Day

I do not know how I missed this, but Saturday, April 16, 2011 was National Health Care Decision Day (NHDD). The idea behind this day is to “encourage patients to express their wishes regarding healthcare and for providers and facilities to respect those wishes, whatever they may be.” NHDD has a lot of wonderful resources on their web page.

I have also been asked to participate in a “Final Affairs Fair” in Burlington, Massachusetts, on May 1, 2011. I will be bringing the health care form “5 Wishes,” from Aging With Dignity, and will be giving them away to anyone who wants one. Please feel free to stop by to pick up the form and ask any questions you may have.

Estate Planning and Elder Law Newsletter: Someday I Will do a Will

Every month I send an E-Newsletter that has articles on estate planning and elder law topics. If you would like to subscribe to this E-Newsletter please feel free to sign up.

This months topic is “Tomorrowitis.” Many people pass away without any plan in place. There are lots of reasons for this: people think they do not need a written plan, the thought of doing a Will makes them uncomfortable, they can not decide a distribution plan or select the executors. One thing that may help clients begin the process, is that with a typical estate plan, anything can be changed or modified.

There is a recent interesting case from Canada that shows what can happen to a family when someone dies and leaves things in a mess. Mr. Barrick died at 102 years old. He had a valid Will, but because he distrusted banks, he kept all his money in his home. After Mr. Barrick died, his son found $96,000.00 in the house, which he gave to his three sisters. His sisters, however, believed that there was another box full of money in the house – $210,000.00 worth – that he never mentioned. So, they took him to Court. The Judge ultimately found that there was not enough evidence to conclude that the box of money ever existed.

The saddest part of the whole situation was identified by the Judge: “[T]he children of Mr. Barrick are in court sad, broken, and hopelessly divided on this issue, for which there shall never be any happy resolution. Alvin’s once happy family is torn asunder by the very thing he did not care about – money – or perhaps the very thing he cared too much about to protect his children from their fate of being siblings squabbling over money he may have had.

Read the full opinion: Barrick v. Lilliste, 2011 ONSC 1847 (2011).

Preparing for an Initial Estate Planning Meeting

New Massachusetts Homestead Law – Update

The new Massachusetts Homestead Law goes into effect today, March 16, 2011. Secretary of State William Galvin provides a brief summary of the new law on his website.

In addition, the new Homestead forms are now available for download. There are two available forms:

1. Homestead for Individual Owners, including those over 62 years.
If both spouses are over 62 years old, each should file their own Declaration of Homestead. This will protect the property if one spouse passes away. Another change for the better is that when the second spouse files, the filing date will go back to the date of the first filing. Before today, any new filing would automatically have voided the earlier filing, possibly subjecting the property to any claims for the dates between the two filings.

2. Homestead for Property in a Trust.
This is completely new form because, for the first time, Massachusetts allows trustees to sign and record the Declaration of Homestead.
In December I wrote about some of the changes that come with the new Homestead Law. Among them are:

  • Automatic protection of $125,000.00 even if no Declaration of Homestead is filed;
  • $500,000 worth of protection if a Declaration of Homestead is filed at the Registry of Deeds; and
  • Trustee(s) are now allowed to sign and file a Declaration of Homestead.

Some parts of the Homestead Law remain the same:

  • The filing fee is still $35.00;
  • The Declaration of Homestead must still be filed in the Registry of Deeds in which the property is located;
  • Filing a Declaration of Homestead will not protect against claims from Medicaid when the recipient dies; a mortgage secured by the property; or a judgment for spousal or child support.

Secretary Galvin also has a booklet available: Questions and Answers: The Homestead Act.

Estate Planning and Elder Law Newsletter: Estate Planning Tips for Singles

Every month I send an E-Newsletter that has articles on estate planning and elder law topics. If you would like to subscribe to this E-Newsletter please feel free to sign up.

This month’s topic is “Estate Planning for Singles.” Whether divorced, widowed, or never married, nearly half the population is single. Read why estate planning is just as – and maybe even more important important – for single people as married couples.