Are Holographic Wills Legal in California?

By Ronna L. DeLoe, Esq.

Are Holographic Wills Legal in California?

By Ronna L. DeLoe, Esq.

A holographic will is a last will and testament written entirely in the handwriting of the person making the will. Each state has its own laws on holographic wills and, if allowed, the circumstances under which they're permitted. While California allows holographic wills, they are fraught with risks.

California Holographic Wills

The testator, or person writing the will, must comply with the requirements of California Probate Code §6111 for the will to be valid. These requirements include that the testator:

  • Had testamentary capacity—they must have been of “sound mind" when writing the will and must have understood they were writing a will
  • Wrote the will in their own handwriting, either in its entirety or wherever they filled in a blank form, without handwriting from anyone else
  • Had testamentary intent—that is, the intent that the document would be their last will and testament
  • Signed the holographic will

Other general requirements are that the testator was at least 18 years of age when they made the will, and that the will's signature and contents match the testator's handwriting. Anyone familiar with the testator's handwriting would make a good witness during probate of a holographic will. The problem, though, is that witnesses aren't needed for a holographic will in California. The failure to require witnesses sometimes makes it difficult to prove that the handwriting is the testator's.

No Requirement for Notarizing or Dating the Will

It often surprises people that California doesn't require either notarizing or dating a holographic will. However, it's highly recommended that you date your holographic will next to your signature, which serves as a good indication of the date you made the will.

While you certainly can have your will notarized, most often, holographic wills are not notarized. Failure to notarize doesn't affect a holographic will's validity.

Legibility

The entire holographic will must be legible, including the date if you include one, or the court could decide not to enforce the will. Having a court declare your holographic invalid isn't a chance you want to take. Even if part of the will is illegible, a court could declare the entire will invalid if it finds that the illegible part makes the will confusing.

If you're preparing a holographic will, take the time to write it carefully and legibly. You may want to have someone else view it to confirm whether your handwriting is legible.

Clear Expression of the Testator's Intentions

To be valid in California, a holographic will must clearly express the testator's intent. The will must look like a will — not like a list or a request. It must show what the testator wanted to do with their assets.

Writing a holographic will is risky because the lack of witnesses could make the testator's intentions questionable. The court may have to rely on testimony from people familiar with the testator to confirm that the holographic will is something the testator would have wanted.

If the court declares the will invalid, the estate will be treated as though the testator died without a will. State statutes designate who gets the testator's assets — even though you may not have wanted those people as beneficiaries.

Testamentary Capacity

The testator must have been of sound mind when they wrote the will. Without such testamentary capacity, a court will declare the will invalid and state law on intestate succession will apply.

Like trying to prove the testator's intentions, testamentary capacity is difficult to prove without witnesses. If no one was with the testator when they wrote the will, it's difficult to know whether the testator was lucid at the time. So if you choose to write a holographic will, it's a good idea to have witnesses.

You can write a legal will without an attorney, but be careful that it's done correctly, otherwise you run the risk of the will later being declared invalid. In some cases, beneficiaries or people who were left out of the will may challenge — or contest — the will if they believe it doesn't accurately reflect what the testator truly wanted.

Because of the inherent risks, consider consulting an attorney before you decide to write your own will.

This portion of the site is for informational purposes only. The content is not legal advice. The statements and opinions are the expression of author, not LegalZoom, and have not been evaluated by LegalZoom for accuracy, completeness, or changes in the law.