Glendale, CA asked in Estate Planning and Probate for California

Q: I have a question about making changes to Will

I made my will a little while back know I want to make changes to the well ie Distributions Or just start over with a New wheel?

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1 Lawyer Answer
Bruce Adrian Last
Bruce Adrian Last
  • Estate Planning Lawyer
  • Pleasant Hill, CA
  • Licensed in California

A: Glendale:

To codicil or not to codicil, that is the question.

In order to make changes to a will, you have two options. You can make a new will revoking the old will, or you can write an amendment, called a codicil, to change only the portions you wish. Creating a new will, and revoking and destroying the new will, is probably the better practice unless you are working with an attorney. Primarily because an improperly drafted codicil may end up with provisions conflicting with the original will, resulting in a need for court interpretation.

I can tell you that making changes by scratch outs, interliniations (writing in additional or new language), or making other changes to the face of the original will should not be done. While a scratch out (or obliteration) of language may revoke that portion, the interliniation may not be valid, resulting in an incomplete will or worse.

And, any codicil or will must be executed with the correct formalities for California and other procedures to lower the chance of a contest (challenge to the will) just like a will. Most people know the requirement of the signature of two witnesses who do not receive a gift in the will. (A Notary acknowledgement by itself does not meet execution formalities.) And, the witnesses should use a "self proving affidavit" and legibly print (or have typed in) their names and addresses. In case of a contest, you want to be able to find the witnesses.

Even a holographic will (a will in your own handwriting and signed and dated by you) should be witnessed, although it is not required. Again, if there is a contest you want witnesses who can testify in court about the authenticity of the document.

There are a number of good resources on the internet about how to draft your own will. But, wills, their enforcement and effect is a fairly technical area of law. I recommend that you have an attorney "check your work" for any home made will or trust. Think of it as insurance, you pay a little now to avoid your heirs and beneficiaries paying a lot latter.

Plus, if you have an estate of any reasonable value (more than $150,000) or you own real property (even if there is a mortgage), an attorney may be able to suggest alternatives that will avoid probate. Probate is both time consuming and expensive. Even a small $200,000 estate will cost $14,000 in attorney and adminsitrator's fees to administer in probate. While a revocable living trust is the "gold standard" for avoiding probate, there are other avenues which are less expensive and may be appropriate depending on the nature and extent of your assets.

If you don't know where to find an attorney, you can try your local county bar association. Many California county bar associations provide attorney referral services which, for a small or no fee, refer you to an attorney who provides a half-hour or hour consultation.

Best of luck, and Happy Holidays.

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