Palm Springs Law Blog

Monday, September 5, 2022

Mistakes to Avoid When Writing Your Will

Even if you do not believe you have enough property to justify writing a will, a will can cover many matters unrelated to your property. For example, it can identify who will make healthcare decisions when you become incapacitated, designate guardians for your children, and convey your burial wishes.

Because wills can be so important when it comes to your descendants’ futures, it’s crucial to learn the mistakes to avoid when writing your will.

1. Writing a Will Without the Formalities

Under California law, a will must meet certain elements for a probate court to recognize it as a legally-binding will. If your will does not meet these requirements, you have merely provided a list of wishes rather than a will that your heirs can enforce in court.

For a probate judge to accept a will:

  • The will must be written
  • The testator must be over 18 and not be mentally incapacitated
  • The testator or someone acting at the testator’s direction must sign the will
  • Two witnesses must sign the will, or the court must receive convincing evidence the testator intended to make a will

If you create a document that fails to meet these requirements, a judge can reject the will.

2. Leaving Property out of a Will

A will only covers the distribution of listed property. If you leave any property out, it will be dealt with according to the operation of California law.

When you do not have a will, your property passes according to intestate succession. In California, this means the court identifies your legal heirs in the following order:

  • Spouse and children
  • Grandchildren, great-grandchildren, or other descendants
  • Parents
  • Siblings and their descendants
  • Grandparents
  • Aunts, uncles, cousins, and their descendants
  • Stepchildren from a marriage to a predeceased spouse
  • Next of kin
  • In-laws

In many cases, this hierarchy will fit your estate plan. But in some cases, it will not. Suppose that you intended to disinherit your nephew. But unless you specify this, your nephew could still end up with some of your property if everyone in levels one through three in the hierarchy has died.

Or, in a more common example, suppose that you want your significant other to take your property, but you never married. According to intestate succession rules, your significant other will not receive any property left out of your will.

3. Forgetting to Address Non-Property Matters

Your will provides your final instructions before you die. In addition to disposing of your property, your will should:

  • Name an executor to manage your estate
  • Identify your choice of guardians for your minor children
  • Designate who should care for your pets
  • Give your funeral and burial instructions

If you forget to address any of these issues, your relatives or a probate judge will decide for you.

4. Not Talking to Your Executor

Talk to your executor before signing your will. The executor will:

  • Work with your estate attorney to carry out your instructions
  • Liquidate property, including selling your house if you did not leave it to someone
  • Pay your bills and taxes until finishing with the estate

Taking an executor by surprise can overburden them and result in messy probate.

The Role of an Estate Attorney

You should speak to an estate planning lawyer before writing a will to make sure you have considered every issue, including:

  • Taxes
  • Probate fees and costs
  • Legal restrictions on what you can do with your property
  • Legal and constitutional limits on the conditions you can place on your heirs

An estate lawyer can help you determine how to accomplish your goals with your property. To discuss your goals for your will, contact Heritage Legal, PC, a Palm Springs, CA, estate planning law firm, for a free consultation.

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