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What Are The Requirements For A Valid Will In California?

A will is a document that directs what happens with the property that you own when you die – you can learn more about what a will can do here.  The requirements to make a will that is valid under California law are:

  1. The will must be in writing
  2. The will must be signed:
    • by the testator OR
    • in the testator’s name by some other person in the testator’s presence and by the testator’s direction OR
    • by a conservator pursuant to a court order to make a will under section 2580.
  3. The will must be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom
    • Being present at the same time, witnessed either the signing of the will or the testator’s acknowledgement of the signature or of the will and
    • Understand that what they are signing is the testator’s will

 

A will that is not executed in compliance with the above requirements for a valid will in California can still be established as a valid will by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to be the testator’s will.

The requirements for a valid will under California law can be found in California Probate Code § 6110.

A California Will Must Be In Writing

A basic requirement of a valid California will is that it must be in writing.  A will can be handwritten or typed.  If the will is written in the testator’s handwriting and signed by the testator it is called a holographic will, which we have written about here.

A California Will Must Be Signed

Under California law, in order to be valid a will must be signed.  There are several options for how a will can be signed, but, in practice, not all are created equal.

Ideally, the testator should sign the will by himself or herself.  Although under California law a testator can direct another person to sign the will, this begs the question of why they testator did not sign the will.  Was the testator unable to do so because they lacked the mental capacity to do so?  Was the testator so heavily medicated that they could not sign on the line?  Did the testator really direct another person to sign the will, or was it the other person’s idea?  If a testator has the ability to sign the will, they should sign the will.

Witness Requirement For California Wills

Another requirement for a valid California will is that the will is signed by two witnesses.  Witnesses for California wills are required to be “generally competent” and must be present at the same time and witness either the signing of the will or the testator acknowledging the signing of the will.   In addition, the witnesses have to understand that what they are signing is the testator’s will.

Witnesses should also be disinterested, meaning they should not be beneficiaries under the will.  Read Can a Beneficiary Witness A Will In California to learn more about the consequences of beneficiary witnesses.

Who Can Make A Will In California?

Anyone 18 years old or over who is of sound mind can make a will under California law.  See California Probate Code § 6100.

To learn more about what it means to have “sound mind” under California law, read Legal Mental Capacity For California Wills and Trusts.

It is a good idea to consult a California probate lawyer to help you prepare a will that does what you intend for it to do, and to make sure that the requirements for a valid will under California law are complied with.

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Find Your California Probate Star

San Diego

Merwyn J. Miller

Los Angeles County

Stewart J. Levin

Orange County

Priscilla Madrid

Ventura County

Naomi Stal

San Mateo County

Sally Bergman

San Bernardino County

Fred W. Edwards

Stanislaus County (Modesto)

Thomas Bonte

Santa Clara County

Nicholas P. Jellins