Palm Springs Law Blog

Monday, July 8, 2019

Beware of Invalid Wills

Today, many individuals seeking estate planning services look to the internet, where they often find form documents such as wills readily available. Nonetheless, using a blanket form and not seeking legal advice can be a costly mistake: a will that is poorly conceived or that does not adhere to California law may be invalidated by the probate court. The best way to properly prepare a will, protect your assets, and provide for your loved ones is to consult an experienced estate planning attorney.

What makes a will invalid?

There are 5 key reasons why a will may be deemed invalid:

  1. Improper Execution -- A will that is not executed properly may be considered invalid. Under California law, a will must be dated and signed by the testator (the person making the will) as well as by two witnesses who must be present at the same time and acknowledge that the document is the testator’s will. The witnesses must also sign an affidavit acknowledging that the testator had mental capacity.
  2. Lack of Testamentary Capacity -- The testator must be of sound mind when executing the will. This means that he/she is capable of understanding why the will is being made and also knows the extent of estate property. An individual who is not in the right state of mind due to a mental or physical condition or who does not understand the will for any other reason is said to lack “testamentary capacity.”
  3. Undue Influence/Fraud -- Undue influence occurs when a beneficiary, caregiver or another person with an interest in the estate coerces the testator in creating or changing will. While some degree of influence is permissible, it must not rise to an “undue” level.  Fraud can arise if the testator is presented with a number of documents to sign, such as powers of attorney, and not informed he/she is signing a will. Undue influence and fraud are typically associated with lack of testamentary capacity. 
  4. Poor Drafting -- A will must include a specific statement that the document is intended to be a will and the testator understands the reason for making it. The will must also clearly specify how the estate property will be managed and distributed, and designate an executor to carry out the instructions of the testator.
  5. Replacement by a Subsequent Will -- It is not uncommon for a will to be updated to reflect the changes that occur over the testator’s lifetime, such as marriage, having children, and acquiring property. If a subsequent will significantly changes the distribution or beneficiary designations, however, the document may be challenged in a will contest and found invalid by the probate court.

Why This Matters

The surest way to protect your assets and ensure the beneficiaries receive the inheritance you had planned for them is to put in place a well-prepared will. By working with an experienced estate planning attorney at Heritage Legal, you will have peace of mind knowing your estate will be properly managed and your loved ones will be protected.

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