Does a New Will Supersede an Old Will?

A will, or last will and testament, is a legal document that designates who gets your assets when you pass away. In California, as in all states, there are specific requirements for creating a valid will that will make it through probate court proceedings and provide what you’ve designated for your loved ones and their future well-being.  

Life changes, however. If you write a will at 25, and you’re married to Spouse #1 with children 1, 2, and 3, but at 48, you get divorced and remarried to Spouse #2, and now have children 4 and 5, the original will probably become out of date.  

Obviously, you need to update your will, but how do you ensure that the previous version will not become a stumbling block to fulfilling your wishes based on the changes in your life, that is, starting a new life with a new spouse and children? 

You will surely want to provide for your children from both marriages, and perhaps for stepchildren from either of your marriages, but you need to make sure that an outdated will isn’t a factor in probate proceedings. You need to be certain your ultimate will—the version that reflects all the changes in your life—is the one that goes through probate. 

A will is an important legal instrument to provide for your loved ones after you’re gone. It’s important to periodically—even annually—review your will to make sure it provides exactly what you want it to provide for your loved ones. You also want to ensure that its provisions and designations of who gets what are crystal clear and legally binding.  

If you’re in the San Jose area of California and you’re drafting a new will to reflect changes in your life and your wishes for your loved ones, contact us at Leet Law. Our estate planning and probate administration attorneys can help you draft a will that perfectly reflects your desires to care for those in your life and that will be crystal clear in all its details, including that it is the most current and valid legal instrument.  

Leet Law also serves clients throughout the Greater San Francisco Bay Area, including San Francisco, Oakland, Palo Alto, and surrounding communities. 

Requirements for a Valid Will in California

A will in California must be in writing. Digital wills are not valid. To create a will, you must be 18 years of age or older and of sound mind. You also cannot be unduly influenced or coerced by others into creating your will.  

The will must also be witnessed by two disinterested persons, which means that they cannot be named in the will to receive anything. A notarization is not required. Under California law, two witnesses are all that’s required to make a will valid, along with your own signature. 

Holographic wills (ones that are created in your own handwriting) need not be witnessed, but as with written wills, they must be dated and signed by you. Problems could arise in probate proceedings, however, if someone were to challenge your handwriting. Witnesses can testify to the authenticity and dating of a will, but if you create a holographic will, you cannot testify to its validity or dating (is it the latest version?) once you’re gone. 

Creating a Will Superseding a Previous Will

You can always simply destroy one will and then create a new one, but if someone has a copy of the destroyed will, that can pose problems in probate. That person can bring the copy to the proceedings and challenge the will that’s being probated. 

Of course, there are ways to avoid this scenario without destroying a previous will. For instance, dating each will is, of course, one way to assert which one is the most recent and applicable to what your wishes are for your loved ones. In addition, you should begin your new, superseding will with the statement, “I hereby revoke all previous wills and codicils.” A codicil is an amendment made to a will that changes its terms. 

A method to avoid this is going over a previous will and lining out sentences or clauses to change the terms of your will. These line-outs and revisions can be challenged on the grounds that someone else who hoped to benefit from the changes made the corrections, not the original will-maker. 

Let Our Experience Guide You

Some online sites will try to get you to fill in some blanks and check some boxes to create a will, but this “one-size-fits-all” approach is not generally specific enough to prevent legal challenges in probate. You really need to sit with an experienced estate planning attorney to make sure that your will not only exactly spells out your desires for your loved ones, but also that it does so in a way that can survive legal challenges. 

If you’re looking to rewrite a will—or create a new one—in or around San Jose, California, contact us at Leet Law. We will work with you on a one-on-one, personalized basis so you can create a legal document that will give both you and your loved ones ultimate peace of mind going forward.