In light of the pandemic, it is more important than ever to put your legal affairs in order. While we recommend you contact a lawyer to prepare your estate planning documents, you may decide to prepare your own will, including going online and searching for “do-it-yourself wills”. This is fraught with peril.
A will does not avoid probate. If you prepare a will before you pass away, it will likely go through probate. If you decide to prepare your own will, without the assistance of an experienced estate planning attorney, you should know about the pitfalls of do-it-yourself (DIY) wills. While you may be convinced your DIY will can pass scrutiny in the probate court after you pass, this is often not the case.
Here are some important recommendations you should know before preparing your DIY will:
- Name as few people as possible to inherit your estate in your will.
The people you name in your will are entitled to notice of all probate hearings and are entitled to request an accounting from the executor. Accountings are complicated and add additional expense to the probate estate that diminishes the money in the estate that eventually will go to your beneficiaries.
- Do not leave $1.00 to anyone.
If there is a blood relative or ex-spouse you want to specifically disinherit in your will, just state that they are disinherited. If you leave them $1.00 they have all the same rights as any other beneficiary, including the right to notice of court hearings and the right to request an accounting.
- Name the person you want to be your executor AND name at least one other person as an alternate executor.
If you only name one executor and that person is unable, unwilling or unavailable to act when the time comes, and you have not designated an alternate executor, the court will appoint someone – and that person may not be the person you want in charge of your estate.
- Always state in your will: “My will waives bond and no person acting as an executor will be required to post bond”.
If you do not include this language, your executor may have to spend additional money from your estate to post bond, which again diminishes the remaining estate to go to your beneficiaries.
- If you want to disinherit a biological or adopted child (regardless of the reason), you should include language in your will that specifically disinherits that child.
If you fail to mention a child in your will, that child may be able to successfully contest your will and inherit their share under California Law. But if you specifically name the child and state they are disinherited, that language will be very persuasive on any judge who may have to interpret your will (if the child does in fact bring a lawsuit to contest the will).
- We recommend you limit the number of specific gifts of personal property in your will.
If you wish to leave specific gifts of personal property to a specific person, like “I leave my diamond ring to my niece Jane Smith”, that language is fine. But don’t include a laundry list of specific gifts for the reasons stated in #1 above. If you want to give items of personal property to family or friends, we recommend you prepare a separate letter of instruction (a letter written in your own hand writing) or you just gift the items during your lifetime.
- California law requires you sign your DIY will in the presence of two witnesses.
A holographic will (a will written entirely in your own handwriting and signed and dated by you) is considered a valid will in California and does not require any witnesses. However, we do not recommend using a holographic will as they are ripe for fraud and undue influence and are the easiest wills to contest in court. It is always better to have a typed or printed will that you sign in the presence of two witnesses (who will also sign your will attesting they witnessed you sign it).
- When you sign your will, make sure that there are two witnesses – not just one witness – who witnesses you signing your will and that they are disinterested witnesses.
This means they cannot be named in your will as an executor or a beneficiary. Also make sure when the witnesses sign their signatures, they print their name and address in the will. During probate, the court may want the witnesses to sign a declaration as proof that they did in fact witness you sign your will. Make it easier for your executor to find the witnesses if this proof is necessary.
- You may decide to use an online DIY will, but they have a host of drawbacks. Online DIY wills are often produced for use in all 50 states, but each state has their own probate laws for creating a valid and enforceable will.
While some state laws for creating a will are similar, many state laws are different and your online DIY will from one state may not be valid and enforceable in another state.
- The best way to be sure that all of the above items are satisfied and that your will is valid and enforceable, and that it will carry out your wishes, is to have an experienced estate planning attorney prepare your will.
The cost to prepare a will is usually not more than a few hundred dollars, and while you may be concerned with the cost, the money your estate will save in the long run, and the aggravation you will spare your executor and beneficiaries, will far outweigh the cost of having an attorney assist with preparing your will.
Having practiced as a probate attorney for over ten years, I have seen a lot of poorly drafted DIY wills. As a result, I have represented many executors named in DIY wills throughout expensive, complicated and lengthy probate proceedings. Many of these probate cases could have spared the executor and the beneficiaries the anguish, delay and expense associated with a poorly drafts DIY will had the person who prepared the will just followed these rules.