California's Statutory Requirements for a Last Will & Testament

By Teo Spengler

Your last will and testament won't go into effect until after your death, so it's best to assure its validity before you sign it. The requirements for wills vary between states. Some jurisdictions require witnesses, while others mandate the presence of a notary public. In California, you can opt for a witnessed will, use a statutory will, hire a lawyer or write out your own will longhand. Each method is valid if you follow the statutory rules.

Witnessed Will

If you are old enough to vote in California, you are of age to make a will. Anyone 18 years or older can sign a document setting out who will inherit her property. Under California Probate Code 6110, a written will is valid if the maker signs the document or affirms her signature in the presence of two witnesses, who also sign the will. Witnesses should be disinterested. If one of the witnesses stands to inherit under the will, the law presumes that he used undue influence and the burden is on the witness to prove otherwise.

Holographic Will

You don't always need witnesses to create a valid will in California -- you may write out your own will in longhand and sign it. This kind of will, called a holographic will, is expressly permitted under section 6111 of the Probate Code. No special words are required. If the material provisions of the will and the signature are in your handwriting, the will need not be witnessed. The court's primary concern in evaluating a holographic will is whether it represents the intention of the maker.

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Statutory Will

California offers its residents another option -- the statutory will, found in section 6240 of the Probate Code. Anyone can use the statutory will by obtaining a copy, filling in the blanks to identify who is to inherit property, and signing at the bottom of the will. Two witnesses must also sign. Any additions or deletions to the form language -- other than filling in the blanks -- may invalidate the will.

Attorney-prepared Will

Some people hire attorneys to prepare wills. Attorney-prepared wills are subject to the same witness requirements as statutory wills. The Probate Code specifies that the statutory will is not designed to reduce death taxes or other taxes. It recommends that you talk to an attorney to do tax planning in the following cases: "(i) your assets will be worth more than $600,000 or the current amount excluded from estate tax under federal law at your death, (ii) you own business-related assets, (iii) you want to create a trust fund for your children's education or other purposes, (iv) you own assets in some other state, (v) you want to disinherit your spouse, domestic partner, or descendants, or (vi) you have valuable interests in pension or profit-sharing plans."

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How Can I Do My Own Will?

Less than half of American adults have wills. One reason for this low figure might be the common perception that wills are complicated and expensive to prepare. Although large and complex estates may require estate-planning services and legal advice, many people with smaller holdings use simple testaments. All jurisdictions accept self-drafted testaments that meet probate requirements. Some states -- such as California -- make it easy for people to draft their own wills by providing a valid form will in the statutes and allowing handwritten wills.

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You manage your assets and care for your family during your lifetime; a valid will extends your influence past your death by providing written instructions for distribution of your assets and care of your children. Americans dying without a will cede these choices to the state. While some hire attorneys and tax advisers to draft testaments, many people create their own valid wills using simple form wills or self-prepared testaments.

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In this age of technology, writing out a will by hand may not be the norm, but it is a perfectly acceptable alternative to typed or printed wills. The key to making an effective handwritten will is knowing your state laws regarding whether witnesses are required and, if so, how many.

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