When is a will not valid? How do you create a fool-proof will? Many individuals create wills during their lifetime so they can control the disposition of their assets after they pass. Creating a will during your lifetime also spares your family or friends the struggle of guessing what your wishes are, especially if those wishes were never written down. However, even if you take the time to create a will, it must meet California’s statutory requirements in order to be valid. Without a valid will, your estate will be treated as though you never had a will in the first place.
To create a valid will in California, an adult age 18 or older (commonly called the “testator”) must intend to create a will, sign the will themselves, and must also have two witnesses sign. The will must also be in writing, although best practice is to have the will typed in a uniform and legible manner, as opposed to handwritten. This might sound simple, but there are many ways a will can be invalidated in whole or in part, some of which we discuss below.
- Interested Witnesses
A witness to a will is considered “interested” if they are a named beneficiary or otherwise have an interest in settling the testator’s estate for their own personal gain. If an interested witness signs your will another beneficiary or interested party could later contest the will’s validity if they believe the interested witness improperly influenced the testator. To eliminate any risk of invalidating the will, it is best practice to have disinterested witnesses sign.
- Not Revoking Prior Wills
It is not uncommon for individuals to create more than one will over the course of their lifetime. But it is crucial that each new will expressly revoke any prior wills made before. You can also revoke a will by physically destroying it. This will help avoid any situation where two wills with contradictory terms exist for one testator at the same time. If there are ever two wills for one testator in existence at the same time, a court will likely need to be involved to determine which controls, if that is unclear.
- Lack of Testamentary Capacity
A testator must intend to create a will and understand that the document they are creating is in fact a will. This is what is known as having “testamentary capacity.” While determining testamentary capacity can become more complicated for individuals suffering from Alzheimer’s disease or dementia, people can lack capacity in a number of other situations including instances of drug or alcohol dependency. It is always best to begin your estate planning process during a time where you have clear testamentary capacity, rather than waiting until later in life when your capacity might become questionable.
Proving a Will’s Validity
If the validity of a will is ever called into question, a court generally has two initial ways to determine whether the will is valid on its face.
First, a court can look to the signatures of the witnesses. While not totally determinative alone, the signatures of two disinterested adult witnesses is an easy way to indicate that the testator’s signature is valid (as it was signed before the two witnesses). As discussed above, having disinterested witnesses specifically can serve as evidence that the will was not fraudulently executed and that the witnesses did not exercise any improper influence over the testator.
Next, in addition to the signatures of two disinterested witnesses, a will can include an “attestation clause” directly above those signatures. An attestation clause is a paragraph in which the witnesses affirm that they were present when the will was signed by the testator. Again, this attestation clause is not determinative alone, but it can add to the evidence that the will is valid.
Aside from these two precautions a testator can take when creating a will, validating a will is often up to the court in contested situations. If your will is not contested, there should be less of an issue with validating it.
Once a will is determined to be invalid by a court of competent jurisdiction, it is unlikely to be found valid again. However, there are instances where a clerical error or simple misinterpretation of a will’s contents can cause an initial determination of invalidity. In this case, a court may be able to validate the will, as long as the other necessary elements for a valid will are also present. Although this is a possibility, you should always aim to create a valid will that meets all of the necessary requirements from the start.
Common Mistakes When Creating a Will
Up to this point we have discussed practical concerns with wills as documents that are susceptible to error. However, wills are more than just words on paper; they can serve as important planning tools to guide the rest of your life and preserve your assets after death. Below we discuss common mistakes and misconceptions people experience when deciding to create a will.
- Naming the Wrong Executor
The “executor” is the person or people responsible for settling your estate once you pass. This person should be someone you trust to carry out your wishes. Your executor could be a family member, friend, licensed professional, or anyone you feel appropriate. Regardless of who you choose, it can be a mistake to name an executor who is not trustworthy, or who may not have your best interests at heart. Your executor should also be someone capable of managing the tasks associated with settling an estate, like communicating with beneficiaries, working with your attorney, and accounting for assets. It is important to carefully consider the people in your life to ensure you name the best person for the job.
- Not Accounting for Intangible Assets
The first thing that comes to mind when creating a will is often how to dispose of tangible, personal property. That is, your personal belongings like clothing, artwork, furniture, and the like. While a will certainly will help you dispose of those assets, it is also important to remember to include your intangible assets. Intangible assets would include things like bank accounts, stocks, bonds, and others. A will should be all-encompassing to distribute all of your assets to those people or other beneficiaries you choose.
- Only Planning for Death
The most obvious purpose of creating a will might be to plan for the distribution of your estate upon your death. But a will can be complemented with additional document like Advance Health Care Directives and Durable Powers of Attorney for Finance. These documents can help you plan in a more comprehensive way, accounting for scenarios that might occur before death, such as a period of incapacity or illness. A will allows you to decide who will settle your affairs when you pass, but pre-death authorizations like those mentioned above let you decide who will help manage your personal and medical affairs while you are still living. Planning for the rest of your life and your passing is the most comprehensive way to create a will estate plan.
Weiner Law Can Plan According to Your Wishes
The attorneys at Weiner Law are available to help you create an effective, comprehensive estate plan that will be useful during life and at death. We understand discussing topics like this can be challenging and even uncomfortable, but we are here to guide you through the process at your own pace and with a gentle disposition. Weiner Law’s team of attorneys are skilled estate planners who can help you craft a custom plan that best fits your needs and helps you meet your goals.