Understanding Will Formalities: What You Don’t Know Can Hurt You!

Understanding Will Formalities: What You Don’t Know Can Hurt You!

What does it take to make a valid will in California? You might think the answer to that question must be pretty simple, since you can even buy do-it-yourself wills online. (Don’t do that!) But the requirements for a valid California will are actually quite technical, and courts tend to interpret them strictly. To give you a taste of those requirements, here are some of the basic will formalities required under California law.

Basic Will Formalities

California Probate Code § 6110 describes three basic formalities required for a valid will in California: (1) a writing that is (2) signed by the testator or other authorized person (in limited circumstances) and (3) signed by at least two witnesses.

  1. A writing

To be valid in California, a will must be in writing. This requirement, like most others in the realm of wills, is interpreted strictly. An electronic document will not satisfy the requirement for a writing. A video will not satisfy the requirement for a writing. The will must be a physical document.

  1. Signed by the testator or other authorized person

In general, the will must be signed by the testator—the person who is making it. However, there are two limited exceptions to this requirement.

First, the will can be signed in the testator’s name by another person, but only in the testator’s presence and at the testator’s direction. So, if, for whatever reason, the testator is not able to sign the will, he can ask somebody else in the same room to sign for him.

Second, if a court has appointed a conservator for the testator, then the court can order the conservator to make a will for the testator. In that case, the conservator’s signature will satisfy this requirement.

  1. Signed by at least two witnesses

In addition to the testator’s or authorized person’s signature, the will must also be signed by at least two witnesses. These two witnesses must have been present at the same time and witnessed the testator signing the will or acknowledging the signature or the will. They must both also have understood that the instrument they were signing was the testator’s will.

However, the lack of witness signatures won’t prevent a will from being valid if the proponent of the will—the person seeking to have it admitted to probate—establishes by clear and convincing evidence that the testator meant for the document to be his or her will when he or she signed it. That standard of proof—clear and convincing evidence—is a high one, so it’s better to actually meet the two-witness requirement.

Best Practice: Hire a Lawyer!

The formalities listed above are not the only requirements for a valid will. Yet, they are easy to get wrong if you don’t know what the law requires. While California does permit some leeway for simple mistakes when making a will, hiring a lawyer to make sure everything is drafted and signed consistent with California law is your best option.

By | 2017-11-18T00:52:08+00:00 Monday, October 30th, 2017|Estate Plan|0 Comments

About the Author:

Bridget Mackay is a Petaluma estate planning attorney who has been practicing law since 1996.
She is a member of the Sonoma County Bar Association, California State Bar Association Trust and Estates Section and on the Board of the Sonoma County Women in Law. She also sits on the Board of the Cinnabar Arts Corporation in Petaluma.
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