Basic Requirements for a Last Will and Testament in California
A Last Will and Testament is one of the most important legal documents a person can create during his or her lifetime. If a person dies without a Will they are said to have died “intestate” and state laws will determine how and to whom the person’s assets will be distributed.
If a person dies without a Will the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime the statutes control the distribution. With a valid Will, a person can legally determine how their property will be distributed… and to whom.
A Will must meet the legal requirements set forth by the state in order for it to be valid. Most states will also accept a Will that was executed in another state if the document is a valid Will under that state’s law. The general requirements for a valid Will are usually as follows: (a) the document must be written (meaning typed or printed), (b) signed by the person making the Will (usually called the “testator” or “testatrix”, and (c) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document.
In California, the laws regarding the valid execution and witnessing of a Will are set forth in the California Probate Code; Division 6 Wills and Intestate Succession; Part 1 Wills; Chapter 1 General Provisions Section 6100; Chapter 2 Execution of Wills, Sections 6110 & 6112; and, Division 7 Administration of Estates of Decedents; Part 2 Opening Estate Administration; Chapter 3 Probate of Will; Article 2 Proof of Will, Section 8220.
In California, any person eighteen (18) or more years of age who is of sound mind may make a Will. (See: Section 6100) “Sound mind” generally means someone who has not been deemed incompetent in a prior legal proceeding.
A Will must be in writing, signed by the testator and by two witnesses. If the testator is unable to physically sign his name he may direct another party to do it for him. The Will may also be signed by a conservator pursuant to a court order to make the Will. These parties may not be counted as one of the two required witnesses. Each witness must either see the testator sign the Will or be told by the testator that the signature on the Will is his, must understand that the document is the testator’s Will, and must sign the Will in the testator’s presence and in the presence of the other witness. (See: Section 6110)
Witnesses to a Will must be generally competent. Generally, it is recommended that the witnesses to the Will be “disinterested”, which means that they are not beneficiaries of the Will. A Will is not invalid if witnessed by an interested witness, but if there are not at least two other disinterested witnesses to the Will, the fact that the Will leaves a gift to a subscribing witness creates a presumption that the witness procured the gift by duress, menace, fraud, or undue influence. If a gift fails because the witness is not able to rebut the presumption, the interested witness must forfeit the portion of the gift that exceeds the value they would have received if the testator had died intestate. (See: Section 6112)
If a Will’s authenticity is unchallenged it may be probated in a simplified procedure if it has been self-proven. Witnesses to a self-proven Will are not required to testify in court because the court automatically accepts a self-proven Will as authentic. To self-prove a Will one of the witnesses must affirm to the authenticity of the Will in an affidavit before a notary and have the notary stamp the affidavit. The affidavit should be part of the Will or attached to it. During probate of the Will, a deposition of the witness may be taken to prove authenticity if no subscribing witnesses reside in the county. (See: Section 8220)