Using a Video Will in Your California Estate Plan

California law is constantly changing. In recent years, the state legislature has modified the Probate Code to accommodate modern estate planning instruments. However, some essential requirements have remained more or less unchanged. If you have considered writing or revising a will, you likely want to ensure that it’s valid and remains valid. In general, a California probate court will only recognize a will as legitimate if it is handwritten by the testator or signed in the presence of at least two witnesses. The Golden State’s strict expectations preclude alternatives that have gained popularity in other states such as “video wills.”

California Law and Video Wills

Despite the Golden State’s recent decision to recognize the inheritability of digital assets such as cryptocurrency and social media accounts, anyone seeking to write or revise a last will and testament must still adhere to certain, time-tested conventions. A will is only considered valid in California if it is written and compliant with the state Probate Code.

Valid Types of Wills in California

Holographic Wills

A holographic will is a handwritten will. While a holographic will does not require any witnesses, it must still be signed. However, a holographic will could be challenged in probate if the testator was inconsistent, unclear, or failed to comply with state law in other ways. Additionally, a holographic will may require verification to ensure that the handwriting in the document matches that of the testator.

Statutory Wills

California law instructs the state to provide free, fill-in-the-blank “statutory wills” to interested residents. Statutory wills cost nothing, include directions, and are easy to understand. However, they are limited in their utility and difficult to individualize.

Attested Wills

An attested will is prepared with an estate planning professional’s assistance. Attested wills are usually clear, legally correct, and “self-proving,” insofar as they do not require additional verification in court.

California’s probate code does not permit alternate will formats, including audio recordings or video footage. So, while a video could supplement a will or serve to clarify the testator’s intent, it cannot legally replace a will.

Should You Still Record Your Will Signing?

Since California does not recognize video wills or video codicils, there is rarely any need to record a so-called “video will.” However, if an attorney believes their client’s estate could be jeopardized by a probate challenge, they might recommend that the testator read their will or state their wishes before a camera. The footage could then be used to persuade a court that the testator was of sound mind and understood the implications of their estate planning decisions.

The Disadvantages of Videotaping an Estate Plan

An individual attorney might ask their client to read their will on tape if they believe the estate could be contested after the testator’s death. However, creating a video recording of an estate plan is not necessarily a surefire way to protect a legacy from litigation. In some instances, a recording could actually impede the estate’s ability to defend itself from an unfounded challenge. For example, if a disinherited beneficiary alleges that the testator was coerced into amending their will by another party, they could point to the video as evidence, claiming that the testator appears anxious, aggrieved, or otherwise “unnatural.”

Similarly, some testators might wish to give an in-depth explanation about their reasons for disinheriting a loved one or making another difficult estate planning decision. If they create a video that has not been scripted by an attorney, or they offer any off-handed remarks, they risk contradicting themselves and presenting the person challenging the will with more opportunities to use the writer’s own words against the estate.

So, even if a video recording could serve some estate planning purposes, you should speak to an attorney before reaching for your camera.

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.

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