Yes, you can write your own will. Writing your own will can be a convenient and cost-effective way to ensure that your assets are distributed according to your wishes after you pass away. However, it is important to understand the legal requirements for a valid will in California and to avoid common mistakes that can lead to litigation and disputes among your heirs.
In California, a valid will must meet certain requirements. It must be in writing, signed by the person making the will (the “testator”), and witnessed by at least two people who are not named as beneficiaries in the will. Additionally, the testator must be of sound mind and at least 18 years old.
Requirements of a valid will
In California, to create a valid will, the following requirements must be met:
- Capacity: The testator (the person making the will) must be at least 18 years old and of sound mind.
- Intent: The testator must have the intent to create a will and dispose of their property at the time the will is executed.
- Formalities: The will must be in writing and signed by the testator or someone acting at the testator’s direction and in their presence.
- Witnesses: The will must be witnessed by at least two people who are not beneficiaries of the will. These witnesses must be present at the same time and must sign the will in the testator’s presence.
- No undue influence or duress: The testator must not be under undue influence or duress at the time of executing the will.
Handwritten wills have their own requirements
It is important to note that California recognizes handwritten wills, or “holographic wills,” which are entirely written and signed by the testator. However, holographic wills must meet specific requirements to be valid, including the material provisions of the will being in the testator’s handwriting, and the will must be dated.
Interestingly, holographic wills do not have a witness requirement – but know that they are much more likely to be contested and your loved ones may very well end up in court fighting over your estate.
Common mistakes to avoid if you DIY your will
- Failing to properly execute the will: Your will must be executed according to California law. Failure to follow the proper procedures for signing and witnessing your will can lead to disputes among your heirs.
- Failing to update your will: Life circumstances change, and it is important to update your will periodically to reflect these changes. Failure to do so can result in unintended consequences and disputes among your heirs.
- Not providing for all of your assets: Your will should provide for all of your assets. Failure to account for all your assets can lead to confusion and disputes among your heirs.
- Ambiguity in the language of the will: To avoid confusion and disputes among your heirs, the language in your will should be clear and unambiguous.
- Naming a beneficiary who is also a witness: In California, a witness to a will cannot also be a beneficiary. If you name a beneficiary who is also a witness, your will may be invalidated.
It is generally recommended to seek the assistance of an attorney to ensure that your will meets all of the legal requirements in California and to avoid any potential challenges or disputes.
A will by itself is not good enough
While a will is an important part of estate planning, it is not enough on its own to provide comprehensive protection for your assets and ensure that your wishes are carried out after you pass away. A will can be subject to probate, which can be time-consuming and expensive, and it may not account for all of your assets or provide for important healthcare and financial decisions if you become incapacitated. To create a comprehensive estate plan, it is important to work with an experienced estate planning attorney who can help you identify your unique needs and goals and develop a plan that includes trusts, powers of attorney, healthcare directives, and beneficiary designations in addition to your will.
