What Makes a Will Legal in California?

By Laura Payet

What Makes a Will Legal in California?

By Laura Payet

Each state has its own rules about how to prepare a legal will, often referred to as a valid will. California's probate code establishes state requirements for this paperwork. Generally, to be valid in California, the document must be in writing and signed by the testator, or the person making the document, and two witnesses. A last will and testament is a legal instrument that allows you to distribute property after your death to the people and organizations of your choosing. You may also use the document to appoint someone to act as guardian for your minor children and manage your children's finances.

Man in jean shirt looking down at paper

Legal Requirements for a California Will

California law requires a valid will to be in writing, either handwritten or typed. Anyone over 18 and of sound mind can make one. To be of sound mind, the testator must have the mental capacity to understand what they are doing and to make important decisions.

The testator must sign and date the document in front of two witnesses, who must also sign it. The witnesses must further attest that they understand that the document they are signing is intended to be the testator's will. The witnesses should be disinterested, meaning that they should not be beneficiaries named in the document.

Holographic Wills

Special rules apply to handwritten or holographic wills. The material provisions must be in the testator's handwriting, and the testator must sign and date the paperwork. This method does not require witnesses, but certain cautions apply.

First, the document must be legible, and the probate court must be able to ascertain its execution date. In addition, the executor or beneficiaries might have to prove that the will is in fact in the testator's handwriting.

Statutory Will

California is among a small minority of states that offer fill-in-the-blank form wills. California's probate code specifically permits this, and a downloadable California Statutory Will is available from the State Bar of California's website.

According to the organization, the form is available for use by single, married, or divorced individuals with relatively small estates. As with other typewritten wills, the testator must sign and date it in front of two witnesses. One major drawback to using this method is that it could be too simple to accommodate many estates. It also does not tolerate alterations; any handwritten notes invalidate it.

The Harmless Error Doctrine

In 2008, the California legislature amended the state's probate code to adopt a harmless error provision. Until that time, any error in executing a will's formalities, no matter how small, would render it invalid. But under the harmless error doctrine, if there is some mistake with the document's signatures, the courts can treat it as valid as long as the person submitting it to probate can prove by clear and convincing evidence that when the testator signed it, they intended it to constitute their will.

Drafting this paperwork may appear to be simple, but despite the harmless error doctrine it is possible to make a mistake that can render your will invalid. If that happens, the court will distribute your estate according to California intestacy laws, which may not coincide with your wishes. Carefully reviewing the state's requirements will help you create valid, legally binding document so you can rest easy.

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.