What Are the Common Mistakes People Make When Creating a Will?

What Mistakes Should I Avoid When Writing My California Will?

A will is an essential legal document that clearly states who you want to receive the benefits of your property and assets after you pass. California law is precise regarding the legal requirements needed to produce a valid last will and testament, so it is vital to avoid mistakes. Such errors can cause confusion and lengthy legal disputes and may result in your final wishes not being carried out as you intended. The team at Cava & Faulkner, an estate planning law firm in Elk Grove, has compiled these common mistakes so you know what to avoid.

Failing to Have the Will Properly Signed and Witnessed

A valid will must meet specific signing requirements under California Probate Code § 6110:

It must be in writing.
The testator (the one testifying this is their will) must sign it.
If the testator cannot do so, another may sign in their name, but this must be done in the presence of the testator and at their direction.
If the testator cannot care for themselves or their finances, a court-appointed conservator may sign for them.
The will should be witnessed by two disinterested persons present when the testator signs the will.

Without the signatures of the testator and the two witnesses, the will can be rendered invalid.

A Note on Disinterested Witnesses

A “disinterested witness” is a witness who does not stand to gain anything from the will. If there is a “devise” (clause or statement) in the will bequeathing assets or property to a witness, this creates a “presumption that the witness procured the devise by duress, menace, fraud, or undue influence” under California law. If you want someone to receive the assets you intend for them in your will, be sure they do not also act as a witness. This mistake could inadvertently cause them to face a legal battle to prove their right to inheritance or even invalidate all clauses of the will relating to them.

Forgetting to Update Your Will

Like life, a will is a dynamic legal instrument that changes as you do. You don’t like considering end-of-life arrangements; no one does. Force yourself to pull out your will and related documents every three to five years to ensure they are still relevant. Any time you have a major life change, it is a signal to review and update your estate plan, including the following:

Marriage
Divorce
Birth of a child or grandchild
Death of a loved one
Significant gain or loss of assets

In some cases, California law will cover some of these changes for you; for example, your divorced spouse is automatically disinherited from your will under California Probate Code § 6122. But even if a former spouse is cut out, you leave the rest up to the court to decide if you do not specify your wishes in an updated will.

Failing to Give a Copy of Your Will to the Executor

This is a simple error that can lead to big problems. According to a recent study, 52% of adult children do not know where their parents keep their estate planning documents. Some (58%) don’t know what the will and other documents say. If you have created estate planning documents, ensure those near and dear to you know where to find them when they need to.

Failing to Get Legal Guidance

Many “Do-It-Yourself” solutions are online for writing a will or completing estate planning documents. The up-front convenience can be deceiving. If you read the fine print, you will find your quick-and-easy source is not a law firm, and its “services are not substitutes for an attorney’s advice.” Another example of the fine print: “The information here is provided for educational purposes only and is not intended to provide and should not be construed as providing legal or tax advice.”

At Cava & Faulkner, we are professional estate planning attorneys qualified to answer your questions and help you avoid the common mistakes that others make. You won’t have to worry about whether your documents will be considered valid in court, giving you greater peace of mind and security.

Overlooking Your Digital Assets

In the modern age, digital assets can make up a significant portion of a person’s net worth. Make sure these intangible assets and obligations are listed, including the following:

Online accounts (e.g., banking, tax, and financial services)
Cryptocurrency
Intellectual property
Digital investments
Monthly subscriptions

You can assign a “digital executor” to manage, close, or liquidate your online accounts and assets. Consider creating a secure central location where you keep all your passwords so they can easily be located by the digital executor you name for this task.

Not Having a Will at All

One of the biggest mistakes anyone can make in estate planning is doing nothing. People often mistakenly believe they don’t need a will because they are young or don’t yet control lots of property, but this is very far from the case. All adults, regardless of their social or economic status, should have a will to ensure their assets are distributed according to their wishes when they pass away. A will can name the guardian you choose for your children should you pass away unexpectedly. It can also make it easier for your loved ones, allowing them to be confident they are carrying out your wishes as you intended.

Take Control of Your Legacy with Cava & Faulkner

Mistakes in your will can have unexpected and potentially harmful effects. Luckily, the biggest mistakes are easily avoided. The professional team of estate planning lawyers at Cava & Faulkner can help you avoid potential hazards and provide you with final documents that are complete, effective, and legally sound. Call us at 916-831-7565 to schedule a free consultation to discuss your will and estate planning documents today.