California defines a will as a legal document that states what a person wants to happen to their property after they die. A will is one type of tool to accomplish estate planning; other tools include revocable and irrevocable trusts, as well as gifts made before the will-maker, or testator, passes. The testator is the person whose property is distributed by the will. Beneficiaries are individuals or entities that receive the property.
A California will contains information about all types of property, including money, bank accounts, real property, and personal property such as objects like cars. The California Probate Code requires that a person who wants to compose a will be 18 years of age or older, that the will be in writing and signed by the testator. Alternatively, the will could be signed in the testator’s name by another person in the testator’s presence and at the testator’s direction, or by a conservator pursuant to a court order. A digital document, such as an email, suffices as a writing.
Additional Requirements of Wills
California law requires a will to be witnessed by being signed during the testator’s lifetime by at least two persons each present at the same time, who witnessed either the signing of the will or the testator’s acknowledgment of the signature on the will. The witnesses must understand that the instrument they sign is the testator’s will.
If the will was not executed in this manner, the court will treat the will as if it were executed in compliance with the statute if the proponent of the will established by clear and convincing evidence that at the time the testator signed the will, the testator intended the will to constitute the testator’s will. After a will is executed, and the testator passes, the will must go through the probate process where it is administered with the supervision of the court.
Who May Be a Witness
Any person generally competent to be a witness may act as a witness to a will. The California Evidence Code provides that every person, no matter what age, is qualified to be a witness. Although the law does not require that a witness be 18 or older, it is generally advisable that a testator choose witnesses who are adults because the court is less likely to question the knowledge and observances of an adult.
A will or a provision of a will is not automatically invalid because the will was signed by an interested witness. (An interested witness is a party set to receive property through the will.) However, unless there are two other subscribing witnesses to the will who are disinterested witnesses, the fact that a will makes a devise (offering of property) to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud or undue influence. The term “subscribing witness” means a person who can prove the testator signed the document because they saw or heard the testator doing so.
Notaries and Self-proving Affidavits
California does not require that a will be notarized or that a notary be present when the testator or the witnesses sign a will. The signature of a notary public on a will cannot make up for the absence of a signature by one or more witnesses. This being said, a self-proving affidavit can help prove that a will is valid.
A self-proving affidavit is a separate legal document from the will. It is signed by the testator and two witnesses, who confirm under oath that they witnessed the testator sign the will without undue influence. A will does not need a self-proving affidavit attached to it to be valid.
What Is a California Statutory Will?
A California statutory will is a will written on a specific form created by the California legislature. The statutory will form is valid as a will if certain requirements are satisfied by clear and convincing evidence. The requirements are: the form be signed by the testator; the court be satisfied that the testator knew and approved the contents of the will and intended it to have testamentary effect; and the testamentary intent of the maker as reflected in the document is clear.
A testator can revoke a California statutory will and amend it by codicil in the same manner as they would amend other wills. Additions to, or deletions from, the California statutory will shall be given effect only where clear and convincing evidence shows they would effectuate the clear intent of the testator. If this evidence is not present, the court may determine that the addition or deletion is ineffective and shall be disregarded, or that all or a portion of the California statutory will is invalid. The court will make the determination to be whichever choice is more likely to be consistent with the intent of the testator.
Testamentary Capacity and Wills
Testamentary capacity goes to the testator’s mental competence at the time they made the will. A person is not mentally competent to make a will, if at the time they made the will, they lacked sufficient mental capacity to understand the nature of the testamentary act (that they were creating a will); understand and recollect the nature and situation of their property; and remember and understand their relations to living descendants, spouse and parents, as well as those whose interests are affected by the will.
A person is not mentally competent if they suffer from a mental health disorder with symptoms that include delusions or hallucinations, when the delusions or hallucinations result in the individual’s devising property in a way that if not for the delusions or hallucinations, they would not have done.
Suggestions for Organizing a Will
It is advisable that the pages of a will be numbered and in natural order. If the testator acquires property after the will is executed, they should update the will. Failing that, they should create a separate legal document called a codicil. A codicil must be executed with the same formalities as a will. A codicil can change the terms of a will.
Revoking a Last Will and Testament
A testator can revoke a will or any part of a will by creating a new and subsequent will that revokes the prior will expressly or by an inconsistency with the prior will. A testator can also revoke a will by burning, tearing, canceling, obliterating or destroying the will with the intent and for the purpose of revoking it. The testator can engage in these acts, or another person in the testator’s presence and at the testator’s direction, can revoke the will.
A will executed in duplicate or any part thereof is revoked if the testator or a person in their presence, acting at their direction burns, tears or destroys the duplicate. Unless a will expressly provides otherwise, if a testator’s marriage is dissolved or annulled after the will is created, the dissolution or annulment revokes dispositions of property to the former spouse.
What Is a Holographic Will?
A holographic will is a will that is handwritten, dated and signed by the person writing the will. A will that does not comply with all these requirements may still be valid as a holographic will, whether or not it was witnessed, if the signature and the material provisions are in the testator’s handwriting.
A holographic will that does not contain a statement about when it was executed may cause the omission to result in doubt as to whether the condition of the holographic will or the inconsistent provisions of another will are controlling. If this is true, the holographic will is invalid to the extent of the inconsistency. The exception is if the time of the holographic will’s execution is established to be after the date the other will was executed.
If evidence shows that the testator lacked the testamentary capacity at any time that the will might have been executed, the will is invalid. The exception is if it is established to have been executed at a time when the testator had testamentary capacity. A statement of testamentary intent contained in a holographic will can be set forth in the testator’s handwriting or as part of a commercially printed form will.
Is a Lawyer Necessary?
It is not necessary to hire or consult an attorney to write a will in California. It is advisable, however, particularly to ensure that the will covers all the testator’s property and complies with the provisions of the California Probate Code.
A lawyer can also review a draft of the will to make sure it is clear and that sections of the will do not contradict one another. For example, a testator seeks to leave almost everything in their retirement account to their child, but they want to leave one stock in that account for their spouse. An attorney can work with the testator to write language into the will to reflect this intent.
Will Contests and Probate Court
A will contest is a fight between one or more parties regarding the validity or provisions of the will. It is a type of civil case heard in probate court. A will contest can void all or part of a will. Other types of proceedings that take place in probate court include: determinations of the parties to whom the testator left property; determining the worth of property; paying the testator’s bills; and transferring the testator’s property to the parties to whom it was left.
A will should name an executor, a person to handle matters like paying debts and distributing the remainder of the estate. If the will does not name a specific executor, the court will appoint one. If a valid will is determined not to exist, the court will appoint a party called an administrator to engage in the same tasks. A probate case usually takes between nine months and one and a half years.
Wills Are Different Than Trusts
A trust is an arrangement in which one person, the trustee, holds title to property for another person, the beneficiary. The settlor, or trustor, creates a trust and puts property into it. A document to create a trust is not required to comply with all the formalities needed for a will.
Other alternatives to a will and a trust include: joint tenancy, where the property of an estate is held by more than one party, with the decedent's share passing to the surviving party after death; pay-on-death accounts; transfer-on-death accounts; and a beneficiary designation on a life insurance or other type of insurance policy.
Dying Without a Will
When a person dies without a will, trust or other provision to distribute their property, this is called dying intestate. In this case, the state of California determines who gets the property. Some property, like joint bank accounts, 401K retirement accounts and financial investments, will be provided to the person named as the beneficiary on the accounts. A person usually selects the beneficiary when they open the account.
Also, in California, some real and personal property can be registered with the county as community property. This means the surviving spouse will become the sole owner of the property after the first person dies.
- California Courts: Wills, Estates, and Probate
- California Probate Code: Sections 6110-6113, Execution of Wills
- California Courts: List of Common Words in Probate Cases
- California Probate Code: Section 6100.5, Mental Capacity to Make a Will
- California Evidence Code: Sections 700-704, Competency
- California Probate Code: Section 6226, California Statutory Will
- California Bar: California Statutory Will Q&A and Form
- California Code of Civil Procedure: Section 1935, Subscribing Witness
- Superior Court, County of Santa Clara: Probate Trusts
- California Office of the Attorney General: Estate Planning - Wills and Trusts
- California Probate Code: Sections 6120-6124, Revocation and Revival
Jessica Zimmer is a journalist and attorney based in northern California. She has practiced in a wide variety of fields, including criminal defense, property law, immigration, employment law, and family law.