When someone passes away, few things create more confusion or conflict than the discovery of multiple wills. In these situations, it’s normal to wonder, “Does a new will override an old will?” Whether you’re a beneficiary, a family member, or a professional helping settle the estate, understanding which version of a will is valid can make all the difference. While it’s true a newer will typically overrides an older one, it isn’t automatic. If a new will is not properly executed or fails to revoke the prior version clearly, it can significantly delay probate, trigger legal disputes, and tarnish the legacy of the decedent.
“It is not uncommon for families to discover a new will after probate has already begun, making them unsure what to do next. A big source of this confusion is that people sometimes think they shouldn’t destroy these documents,” said Marcia L. Campbell, CPA and professional executor. “This can make the estate and, ultimately, the decedent’s legacy seem like it is in limbo. Knowing how and when a new will overrides an old one can prevent costly mistakes and confusion,” she said.
It’s important to always discuss your wishes and intentions with your professional executor and estate planning attorney to ensure you have a concrete estate plan. Here’s what happens when someone creates a new will, how revocation works in California, and what to look out for during probate to ensure the correct version of the will is honored.
Does a New Will Override an Old Will?
Generally, writing a new will overrides any previous version if it includes a clause stating that the new will is intended to supersede the previous ones. This condition is crucial to meet. However, it’s still more nuanced than that.
A new will must be drafted and executed properly to ensure the old will is legally revoked. Without the correct language or process, questions may arise during probate that could delay or complicate the administration of the estate.
Does a New Will Cancel an Old Will?
Yes, when a new will overrides an old will, this is also known as canceling an old will. Another common legal phrase for “canceling a will” is “revoking it.” Let’s get into what this means in the context of California probate law.
What Does Revoke Mean in Probate?
Revocation’s meaning in law is a court order vacating an earlier decision to admit a will to probate. It means that, contrary to the court’s earlier decision, the document submitted to the probate court is now invalid. While creating a new will is one way to revoke an old will, it’s essential to know that there are several ways to revoke a will.
“People sometimes think that simply creating a new will is enough to revoke and invalidate the old one,” said Campbell. “But revocation isn’t automatic, and you must follow clear legal procedures throughout the process, which is why professional guidance is crucial to navigate it effectively,” she added.
How to Revoke a Will in California?
It’s common to update a will as life circumstances change, such as births, deaths, marriages, divorces, purchasing or selling of homes, and other significant events.
These events all necessitate updating an old will or, in some cases, creating a new one when you want to make significant changes. There are a few ways to revoke a will, providing different avenues. Here’s how to revoke a will in California:
- Physically revoking it by tearing, burning, obliterating, or destroying it with the intent of revoking it. In California, for this method to be valid, the person who created the will must perform the action, or another person must do it in their presence and under their direction.
- Creating a completely new will, dating it, having it witnessed, and having it signed. This method is generally the most straightforward. But remember – this document must explicitly state the revocation of all previous wills and codicils.
- Creating a subsequent written document (other than a new will) that declares the revocation, like a trust. This document must be executed with the same formalities required for a valid will.
- Changing life circumstances can also revoke a will. Certain life events, such as a divorce or annulment, can partially revoke a will under California law. For example, if a will leaves property to a spouse, that provision is automatically revoked if the marriage is dissolved unless the will explicitly states otherwise.
How Long Does a New Will Override an Old Will?
Once signed and witnessed according to California law, the new will immediately becomes the operative will and overrides an old will until it is revoked or invalidated. For example, if another version of the will or a trust is created, this could revoke the new document.
If it’s been invalidated through probate litigation because it was discovered that the creator lacked the mental capacity to create a new one, this would also mean it no longer overrides an old will, and the old will is the document the courts will enforce.
What Happens if a Will is Revoked Without a New Will Being Created?
If a will is revoked without creating a new one, the estate may be distributed according to California’s intestate succession laws, which may not align with the will creator’s wishes.
However, if they create a trust after revoking the will, their estate will be distributed per the instructions in the trust document.
Related Article: Complete Guide to the Final Distribution of Estate Assets
Are Old Wills Valid in California?
Ultimately, this depends on your unique situation. An old will in California is valid until the person who created it has revoked it or it has been invalidated in probate court during the estate administration process as long as it doesn’t have a set expiration date.
Should You Keep Old Wills?
It is generally not a good idea to keep old wills. When you draft a new will, it should contain language that explicitly states your intention to revoke all previous wills. Destroying old wills is important because it needlessly avoids confusion.
If multiple wills exist, it could cause disputes and legal complications and make it difficult to ensure your wishes are being fulfilled. When a will is destroyed, it is generally advisable to inform the executor, your estate planning attorney, and your beneficiaries.
Related Article: How to Find an Executor for My Will in California
Can a Will be Changed?
Yes, a will can be changed either by creating a new one that revokes the old one or using a codicil, which is a formal amendment to the will.
Can You Change Your Will at Any Time?
You can change your will at any time before death as long as you are mentally competent to do so. These changes can come by creating a new will or making amendments. After the person who created the will dies, however, it cannot be changed.
What Happens if My New Will Doesn’t Mention My Old Will?
If your new will doesn’t explicitly revoke the old will, there could be complications. In these situations, the provisions of both wills could potentially be considered, leading to conflicts. Clarity is, ultimately, why a revocation clause is crucial.
If an Old Will is Probated, How Do We Present a New Will?
Finally, you may be wondering, ‘Does a new will override an old will once probate has started or after the estate has been settled?’ Generally, yes, but there are some crucial aspects of this process that you should know.
If an old will has been probated, and a later will is discovered, you can present the new will by applying to the Probate Registry to revoke the previous grant of probate and issue a new grant in favor of the personal representatives appointed under the new will.
In some instances, you may have to take legal action against the executor, estate administrator, or personal representative who wrongly distributed the estate. If someone hid the newly discovered will, like another beneficiary, this could also warrant legal action.
“Whether you’re updating your estate plan or managing a loved one’s, don’t assume a newer will automatically takes care of everything,” warned Campbell. “The details matter, and having a professional on your side makes all the difference,” she explained.
Related Article: What is the Probate Process?
Do You Need Help Updating Your Will, Creating a New One, or Managing and Settling an Estate? Always Work With a Professional.
So, does a new will override an old will? Generally, a new will supersedes an old will if it is written and executed correctly, which requires some expert guidance. But getting it right requires more than just drafting a new document. To avoid confusion, disputes, or delays during probate, it’s essential to ensure the new will includes clear revocation language, complies with California law, and reflects your current intentions.
When managing an estate or updating your will, expert guidance is the difference between a smooth and complicated process. A qualified probate professional can help you move forward with confidence, knowing that every detail has been handled with care.
