It's not a secret that it's important to have a will. While writing a will is not mandatory under California law, if you don't have a will when you die, property you own gets assigned to your next of kin under California's intestate succession laws. California will laws permit holographic wills, which are handwritten wills. A holographic will is very easy to create, and may be appropriate for your needs.
TL;DR (Too Long; Didn't Read)
While holographic wills are permitted in California, it's best to do a formal will, meaning one that is signed in the presence of witnesses, so that there are no problems enforcing your wishes upon death.
Formal Wills in California
A will is the way you identify who gets your assets and property when you die. It is also a way to identify who you choose to appoint as guardian for any minor children. Wills can also be designed to avoid probate taxes and other types of taxes on the estate.
If someone has neither assets nor minor kids, there may be no reason to write a will. But even people who own considerable assets sometimes avoid writing wills. That can be because making a will draws one's thoughts to death. But it might also just be all the hassle and costs involved in making a will, like going to an attorney, reading all the fine print and lining up appropriate witnesses to sign the will.
Under California Probate Code § 6110, formal wills in California must be in writing and signed by the testator – the person making the will – in the presence of two adult witnesses. That means that the witnesses must both be present when the testator signs the will and must know that the document being signed is the testator's will. While it is possible to prepare such a will yourself, many people hire an attorney to put their intentions into legal language. That means attorney fees.
Holographic Wills in California
Holographic wills are much easier to prepare than formal wills in California since you can write them out by hand without many formal requirements other than a signature. No witness signatures are required on a holographic will.
California is one of a minority of states that permit anyone to make a holographic will. Under section 6111(a) of the California Probate Code, a holographic will is legal as long as it is written entirely in the handwriting of the person making the will, the person intended the document to be his will, the person understood what he was doing and it was also signed by that person. It is also a good idea to put a date on the will. The will doesn't need to be witnessed to be valid and legally binding.
Holographic wills are simple wills, drafted without any thought to reducing taxes. Experts say that they are not appropriate for complex estates or complex bequests.
Considerations About Holographic Wills
If you are considering writing a holographic will in California, there are a few issues to consider. The very elements that make a holographic will easy also make it more easily challenged in court than formal wills. That is, there are no witnesses to testify to the court that you actually signed the will and knew what you were signing.
It is also easy to make mistakes in drafting holographic will. Typical errors in a holographic will are forgetting or failing to name certain individuals, including:
- A legal guardian for your minor kids.
- A trustee for a minor child's inheritance.
- An executor for your California will.
In any of these cases, the probate court can appoint someone you may not know or someone you know and don't like. And if you write your will illegibly or use vague or ambiguous terms, it can lead to lengthy and expensive probate litigation to resolve the matter.
On the other hand, a holographic will may be appropriate for someone without complex assets. This is especially true if your intention is to leave your assets to your surviving spouse or your children in equal shares.