What’s wrong with a Willmaker will and ending up in California probate Court

So this blog is basically covering two topics in one title – What’s wrong with a Willmaker will and ending up in California probate Court!?

First I want to be clear there is absolutely nothing inherently wrong with a Willmaker will or a Susan Orman will or a Legal Zoom will or any other such will. If you keep it really simple it should be a fine legal document.

Second I want to talk about a problem I commonly see with all of these various wills and just saw one that was a Willmaker will that had the problem. What’s the problem?  Failure to execute the document exactly right!

Does it really matter if a will is executed exactly right?  Close is good enough, right? It’s like horse shoes and hand grenades, as they say, isn’t it!?  NO close is not good enough in some cases!  Plus, having a will that is executed pretty good, but not perfect, raises the chances that someone might contest it!

In my new case the will is straight forward, seems to be well thought out, disinherits someone very clearly, gives away the assets very clearly, names an executor very clearly, etc….  The will has two witnesses which is GREAT!  The problem is the language in the will located where the person signs their will. That language mentions the word “witness” and thus, in my case, they had a witness sign on the line that is normally where the person making the will signs.  The person making the will signed right above that so he signed the will, he dated the will, he has two (or maybe three witnesses) so it’s fine. However, the lack of signing exactly right could cause someone to question the will.

I can not emphasize this enough. A clean will, preferably drafted by an experienced estate planning attorney, is much preferred to a canned will.  Plus, I have to ask why didn’t this guy get a living trust? He wanted his chosen beneficiary to receive his house so why not put that house into a living trust? Did Willmaker tell him about a trust?  I don’t know but I know if he had gone to an experienced California estate planning attorney he would have been told about a living trust!

If you are making a will using Willmaker, LegalZoom, Susie Orman, etc… please be very careful with executing it just right. The rules are:

  1. Do NOT use a notary for signing a will. Notaries should notify powers of attorney, health care declarations, living trusts, deeds, and many other estate planning documents but DO NOT NOTARIZE A CALIFORNIA WILL.  For some reason many notaries do not know this simple rule so I repeat DO NOT NOTARIZE A CALIFORNIA WILL.
  2. Have at least two witnesses present with you when you sign your will. They should not be named in the will and it’s best if they aren’t relatives. They should be 18 or older. Make sure you get their name, address and phone if possible.
  3. You should sign AND DATE your will.  Sign each page if you want but be sure you sign at the end where it says something like “signature of testator.”
  4. Put the original “wet ink” will in a safe place!  It’s best to not lose it. Give it the named executor maybe!?  Just don’t lose the original will!

If you have questions regarding probating of a Willmaker will, a LegalZoom will, an Orman will, or any other will please reach out by text, email, phone, or other means. Let’s chat!

-John Palley

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