Can a new will fix attestation errors in an old will

Q: Can a new will correct mistakes in a previous will?

Generally, no. A new will can’t ‘fix’ an invalidly executed prior will, but it can supersede it by stating your current wishes. The original flawed will remains invalid.

Q: What happens if a will is found to be invalid?

If a will is invalid, your estate will be distributed according to California’s intestate succession laws, meaning it will follow a statutory formula rather than your wishes. If the estate is small enough (under $208,850), it might avoid full probate but will still not follow your desires.

Q: How can I ensure my will is validly executed?

Engage a qualified attorney, ensure strict witness compliance (two disinterested witnesses present during signing), use a self-proving affidavit to streamline probate, and consider notarization for extra authentication.

Can a new will fix attestation errors in an old will?

Linda stood pale and trembling as her brother explained the probate court’s decision. Years after her mother meticulously drafted her will, a simple technicality – a witness signing in the wrong place – invalidated the entire document. The family faced months of costly litigation and the emotional strain of navigating intestate succession, all because of a seemingly minor error. The estate, while not huge, was significantly reduced by legal fees, leaving Linda questioning if years of planning meant nothing.

Can a new will correct mistakes in a previous will?

A Temecula estate planning attorney is guiding the witnessed signing of a will alongside two disinterested witnesses present in a modern law office discussing: Can a new will correct mistakes in a previous will

The short answer is generally no, a new will cannot fix attestation errors in a prior will. While you can create a new will to supersede an old one, the validity of the original will remains unchanged. A prior, improperly attested will is still invalid, regardless of whether you subsequently execute a perfectly valid new will. Think of it like a flawed foundation—covering it up with new paint doesn’t make the foundation sound.

However, a new will can address the outcome of those errors by clearly stating your current intentions. If the prior will is deemed invalid, your estate will be distributed according to California’s intestate succession laws (the laws governing distribution when someone dies without a will). A new will allows you to direct the distribution of your assets as you wish, assuming it’s properly executed. But the old, flawed will still exists as a legally invalid document.

What are common attestation errors that invalidate a will?

Attestation refers to the signing and witnessing of a will. California law has strict requirements. Common errors include:

Incorrect Witness Placement: Witnesses must sign the will in the presence of the testator (the person making the will) and each other. A witness signing before, or long after, the testator signs can invalidate the will.
Insufficient Witnesses: California generally requires two disinterested witnesses. A “disinterested” witness is someone who doesn’t stand to inherit anything under the will.
Witness Interest: If a witness is also a beneficiary, their signature could void their gift, and potentially the entire will. California Probate Code § 6112, often called the purging statute, addresses this—the gift to the interested witness is void, but the rest of the will may remain valid if there are sufficient disinterested witnesses.
Lack of Presence: All witnesses must be present at the same time as the testator signs, and they must see each other sign.

What happens if a will is found to be invalid?

If a will is deemed invalid, the estate is distributed according to California’s laws of intestate succession. This means assets are distributed to surviving spouses, children, and other relatives according to a predetermined statutory formula. This process can be significantly more complicated and costly than administering a valid will. It’s also important to note that if the estate is relatively small – under $208,850 (effective April 1, 2025) – it might avoid full probate through simplified procedures, but your wishes will still not be followed.

How can I ensure my will is validly executed?

Proper execution is paramount. I, as both an Estate Planning Attorney and CPA, always recommend the following:

Use a Qualified Attorney: Estate planning laws are complex. A qualified attorney can ensure your will meets all legal requirements.
Strict Witness Compliance: We meticulously guide our clients through the witnessing process, ensuring all witnesses are present, sign in the correct order, and are disinterested.
Self-Proving Affidavit: Using a self-proving affidavit, as authorized by Probate Code § 8220, streamlines the probate process by providing immediate proof of proper execution, eliminating the need to track down witnesses later.
Consider Notary Public: While not always legally required for validity, notarizing the will can add an extra layer of authentication.

As a CPA, I also stress the importance of considering the tax implications of your estate plan. Proper planning can minimize estate taxes and ensure a smooth transfer of assets. Remember, a seemingly minor error can have significant financial consequences. I frequently work with clients’ digital assets, ensuring the will grants the necessary RUFADAA powers to access those accounts. Riverside Superior Court – Probate Division

What constitutes a ‘valid execution’ under the Probate Code?

The most heartbreaking cases in probate court are not the ones where no will exists, but where a perfectly crafted will is thrown out due to a technical error. California law is specific about who can serve as a witness.

Strict Rules: Witnesses must generally be disinterested and present at the same time.
High Stakes: A single error can void the document, sending your estate into intestacy.
Legal Limits: Remember, the Statute of Limitations for legal malpractice is generally one year, so getting it right the first time is vital.

For a clear explanation of the difference between notaries and witnesses, check out our post on notarization requirements for a will in California to ensure compliance. Whether you are worried about the validity of an old will or preparing to sign a new one, expert supervision is your best defense against future contests. We are dedicated to providing rigorous legal support to families in San Diego and Riverside Counties. Call us today to schedule a signing appointment and take the final step in protecting your family.

About Steve Bliss: An estate planning attorney in Temecula

The Law Firm of Steven F. Bliss Esq. is a dedicated legal firm serving Temecula, Riverside County, and the Inland Empire. Led by Steven F. Bliss, the firm offers a unique advantage: Steve is an experienced CPA & Estate Planning Lawyer.

Whether the court requires a formal probate or allows for an unsupervised process, having a skilled attorney is essential to avoid delays. Don’t face the costly and confusing legal process alone—call attorney Steve Bliss today.