Your last will and testament is a fundamental part of estate plan. It specifies how you want some or all of your property to be distributed after your death. For the most part, you have full authority to dispose of property as you wish. However, it is critical that you express your intended bequests clearly and unambiguously and that the directions you give are capable of being carried out without complications. If your intent is unclear from the will’s text, the probate of your will can be delayed or can fail.

Probate is the court process by which a will is proved and carried out. Heirs and other people with an interest in your estate may contest the will if its interpretation is open to question. Will contests tend to be time consuming and contentious. Even if there is no formal contest, the probate court must rule on any uncertainties, such as when it appears that a designated beneficiary is deceased or is not able to be located.

Here are some actions you can take to minimize the chances of probate difficulties after your death:

• Prepare your will and other parts of your estate plan while you are in good mental health and able to explain your intentions.
• Carefully describe what assets you wish to distribute through the will and the beneficiaries you wish to receive them.
• If you have been married more than once and/or have children from prior relationships, make sure you explicitly state how the prior spouse(s) and those children are to share in your estate.
• Provide for alternate beneficiaries or alternate distributions in the event that a beneficiary is found to have died by the time the will is probated.
• Include a provision for distributing any residual property, which means assets owned at the time of your death that were not specified in the will.

No matter how careful you are in drafting your will, mistakes can be made. California’s “harmless error” doctrine allows the probate court to correct certain mistakes. However, this doctrine is generally limited to procedural mistakes, such as those relating to the formalities for signing or witnessing of a will. By contrast, substantive mistakes and omissions in the will itself — such as failing to include an intended beneficiary or failing to sufficiently identify their share of bequeathed property — cannot be corrected as harmless. The court would need to decide such matters after hearing all relevant evidence. As such, there is no substitute for having an experienced trusts & estates lawyer assist you in making sure your will is complete and accurately reflects your wishes.

Favaro, Lavezzo, Gill, Caretti & Heppell, PC in Fairfield and Vallejo, California provides estate planning services throughout the North Bay region. If you wish to create or revise a will, contact us online or call 707-674-6057 for a free initial consultation.