Preparing Your Own Last Will

After the pandemic in 2020, the popularity of people preparing their own wills grew. As many of us realized after the pandemic, it is more important than ever to put legal affairs in order.  While I always recommend contacting a lawyer to prepare your estate planning documents, if you decide to prepare your own last will, here is some helpful information that would have saved my past clients a lot of grief. 

Preparing your own last will does not avoid probate. Even if you prepare a will before you pass away, your estate will likely still go through probate. 

10 Important Recommendations When Preparing a Will for Yourself

Here are ten (10) important recommendations to keep in mind before you prepare a will yourself:

1. 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 court hearings and are entitled to request an accounting from the executor. Accountings are complicated and add additional expense to the estate that diminishes the money that eventually will go to your beneficiaries.
2. 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.
3. 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 be an unwanted relative.
4. 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 to post bond, which again diminishes the remaining estate to go to your beneficiaries.
5. 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. 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).
6. 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 avoid 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 handwriting) or just gift the items during your lifetime.
7. California law requires you sign your 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 preparing a holographic will, as they are ripe for fraud and undue influence and are the easiest wills to contest.  It is always better to have a typed or printed will that you sign in the presence of two witnesses.
8. When you sign your will, make sure that there are two witnesses – not just one witness – who witness you signing your will and that are disinterested parties to the will.
   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 witnessed you sign your will.  Make it easier for your executor to find the witnesses if this proof is required.
9. You may decide to use an online will, but they have a host of drawbacks.
   Online 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 will from one state may not be valid and enforceable in another state.
10. The best way to be sure that all the above items are satisfied and that your will is valid and enforceable 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, far outweighs the cost of having an attorney assist with preparing your will.

Having practiced as a probate attorney for over twelve years, I have seen many poorly drafted do-it-yourself wills.  As a result, I have represented many executors 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 drafted will had the person who prepared the will kept these recommendations in mind or had an experienced estate planning attorney prepare their will.