A will is more than a list of written demands and wishes—when properly executed, a will can be an intergenerational legacy. However, a written will does not take effect automatically, nor is it valid simply because it lists heirs or contains an end signature. Unlike some other states, California residents do not have a constitutional right to draft a will and last testament. Rather, their will must follow the letter of the state’s Probate Code to be both legal and binding.
What Makes a Will Valid in California
California has simple expectations for most will-writers. They must be:
- At least 18 years of age or be an emancipated minor
- Of “sound mind”
Someone is of “sound” mind if they:
- Understand what a will does
- Understand which assets they possess
- Understand their relationship with family and prospective heirs
- Do not suffer any mental health disorder which would compromise their ability to disburse property and other assets through a will
Even if a California resident meets these requirements, they must take further steps to ensure that their will complies with state law.
Two Types of California Wills
In California, people may draft either:
- A typewritten will, written independently or with the assistance of an attorney
- A holographic will, written independently and entirely in the testator’s own handwriting
Typewritten and holographic wills must meet different criteria if they are to stand up in court.
In order to execute a typewritten will, Californians must:
- Sign the will in front of two impartial witnesses.
- Have both witnesses sign the will at the same time. They must either witness the testator signing the will or the testator acknowledging their signature on the will.
Neither witness can be an heir or beneficiary to the will, since California presumes that any gift or bequeathal made to a witness was made under duress. If an interested party does sign the will, they may receive a smaller inheritance under California’s intestacy laws, if they receive any inheritance at all.
While holographic wills must also be signed, they do not require witnesses. However, someone drafting a handwritten should include precise language specifying that the document is intended to serve as their last will and testament.
When Wills Are Challenged
Unless the testator had a comprehensive estate plan which shielded their most valuable assets from court, many of their assets will likely end up before a probate judge. When an estate is in probate, it can be challenged for a variety of reasons.
One reason an estate may be challenged is if the will is not valid. If, for instance, the testator had a typewritten will but did not get signatures from two witnesses, an interested party could contest the will. This could lead to probate litigation, an unwanted redistribution of assets, or the will’s invalidation.
Similarly, holographic wills are sometimes challenged, too—even when the handwriting is unmistakably that of the deceased.
Since a holographic will does not need to be dated, prospective heirs will occasionally claim that the testator was not of sound mine when they drafted it. Even if that heir cannot prove the claim, the contest can tie up the estate’s proceedings and drain its finances.
How an Estate Planning Attorney Can Help
If you are just starting to put together a will, a California estate planning attorney can help ensure that your documents comply with state law and will stand up to any challenges. You may also be interested in strategies to help keep your assets out of the emotionally exhausting and often expensive probate process. Many people, especially homeowners and those with complex estates, use revocable living trusts to ensure their loved ones receive their legacy with the least hassle.
Do You Need To Speak With An Attorney About Estate Planning?
If you need to speak with an experienced estate planning lawyer please contact us online or call us directly at 800.756.5596 to first register for one of our free, informative seminars. Your attendance will qualify you for a special discount for our estate planning services should you decide to make a free appointment at the conclusion of the seminar and choose to proceed with us. We proudly serve clients throughout California with offices in Torrance, Newport Beach, Orange, Woodland Hills and Pasadena.