California Law on Wills

by Carrie Ferland

By establishing a will, you can avoid administration of your estate under California intestate succession laws. However, merely writing a will is not sufficient for the state to recognize your wishes -- your will must comply with the guidelines defined by the California Probate Code for the state to acknowledge its validity. While a will that overlooks only one requirement may still uphold in court, you risk the court putting aside your entire will if you fail to comply with these guidelines.

Competence

California probate law defines any person of sound mind, who is at least 18 years of age, as competent to establish and execute a will. The law extends exemptions for persons as young as 16 who are legally married, actively serving in the military and/or are the parent of their own minor child may also execute a will without first requesting the court’s permission. However, a conservator may not establish or execute a will on behalf on a conservatee unless and until he obtains authorization or is explicitly directed to do so by the probate court.

Written Wills

California probate law originally required all wills to be in writing. This is, by far, the most common way to establish a will throughout the state. To establish a valid, written will under California law, the testator must draft a typewritten document appointing an executor, directing the division of her assets and defining any of her additional instructions. The testator must then sign the document in the presence of a notary public, who must notarize the document as well, or in the presence of two disinterested witnesses.

Holographic Wills

State probate law also recognizes the validity of a holographic will, which is a will drafted entirely in the testator’s handwriting. California law only requires the testator to sign the bottom of the document for it to uphold during probate; however, it is still in good practice to have the document notarized or to have at least one disinterested witness sign, as well.

Videotaped Wills

The more recent practice of testator's video recording their wills prompted California to recognize the validity of videotapes, provided the testator appears on camera for the duration of the video. Videotaped wills do not have to follow a specific format, but the testator should address the appointment of his administrators and the division of his assets. California probate law does not require the testator to prepare any written version alongside the videotape, as long as the content of the video satisfies the requisite information.

Witnesses

California law requires that any witness to a will must be competent at the time of signing. A competent witness is defined as any individual who is at least 18 years of age and of sound mind. Witnesses should have no interest in the will, for example, they should not be named beneficiaries, but California does permit an interested party to witness a will when no other witness is available; a will witnessed by an interested party is not automatically void. Unsigned, typewritten wills are only considered valid when the surviving family can demonstrate exigent circumstances and provide substantive proof that the decedent intended the unsigned document as her final will.