What are the Requirements of a Valid Will in California?
Creating a will in California is one of the easiest ways to ensure that your property is distributed to your family and loved ones according to your preferences. Not all wills are legally enforceable, however. There are multiple requirements for creating a legal last will and testament in California. Unfortunately, when a will does not meet the requirements outlined in California law, a probate court may declare it invalid. Some of the requirements of a valid will in California include the following:
The Will Must be in Writing
In California, oral wills that are not in writing are invalid. A will must be in writing to be considered legally valid. The testator, or person making the will, does not need to write or type the will himself or herself. The will can be typed or hand-written. Disputes can arise when it is suspected that the testator or someone else changed the written will. When the changes are not done correctly, a probate court will declare the will to be invalid.
What happens when the changes to the will are written by hand, or when someone has crossed out a section of the will before or after it is signed? It is possible that the court will enforce the changes if the testator signed the changes along with witnesses. However, if you need to change your will, the best thing you can do is consult with a Sacramento estate planning lawyer. A lawyer will help you make a new will that is legally enforceable instead of putting your will at risk in a possible challenge.
The Testator Must Sign and Date the Will
In California, the testator must sign and date a written will. The testator must be of “sound mind” and at least 18 years old when signing the will. Being of sound mind means that the testator has the legal capacity to reason, think, or understand the will. When a person is not of sound mind, an interested party has the right to challenge the will during the probate process. It is possible for someone with a diminished mental capacity to sign a legally valid will, but the testator cannot be unable to reason and understand.
The Will Must be Signed by Witnesses
Under California probate law, at least two witnesses must sign your will. The witnesses must be present at the same time you, as the testator, sign the will or that the testator acknowledges his or her signature. The witnesses also need to sign a legal affidavit that acknowledges the testator’s mental capacity when he or she signed the will.
The Will Must Identify Beneficiaries
The main purpose of a last will and testament is to tell the probate court how to distribute your assets and property after you pass away. As such, the will must precisely identify which property you would like which person or people to receive. It is important that the language in the will clearly identify who is entitled to which property. Many legal challenges related to wills are due to unclear language in a will that lends itself to multiple interpretations.
The Will Must Use Precise Language
While it is possible to create your own will, it is best to work with an estate planning lawyer. Estate planning lawyers have the knowledge and expertise that allows them to use precise language to ensure that the probate court can determine your intentions regarding your property’s distribution.
Most wills contain specific bequests and residuary clauses. Specific bequests address one particular item. In a specific bequest, the will may state that a certain beneficiary receives a specific dollar amount, percentage, or item. Once a testator designates particular property to specific people, there may be assets left over that have not been distributed.
It may be difficult to list every item and asset in a specific bequest. Thus, many wills include residuary clauses. Multiple variables make a residuary clause a necessity. A residuary clause states that all of the remainder of the testator’s estate, both personal and real, should be given to a person or non-profit. The precise language of a residuary clause can vary to some degree, but the language needs to be clear enough so you can dispose of any of your remaining property in your estate.
Are Holographic Wills Legal in California?
A holographic will is a handwritten will that is signed and dated by the testator. Holographic wills can be legally valid in California. They do not need to be witnessed or notarized, but they need to have the testator’s signature. Creating a holographic will can be useful during emergencies. However, it is best to work with an experienced estate planning lawyer to create a will that two witnesses sign. Holographic wills are more likely to be legally challenged in California probate courts.
Changing a Will After it Has Been Written
Many people write a will many years before they pass away. In the intervening years, changes may occur to make the will ineffective. If you left all of your property to your ex-spouse, you will need to update your will. You can either add a codicil to your will, making a change, or create a new will. The changes must meet legal requirements to be valid.
Contact a Sacramento Estate Planning Lawyer Today
When you are writing and signing a will, you must ensure that it meets all of the requirements under California law. You have worked hard your entire life to earn an income and increase your wealth. Creating a legally valid will ensures your loved ones receive your assets according to your wishes. The Sacramento estate planning lawyers at the Law Office of Daniel Hunt can help you create a thorough, legally valid will. Contact us today to schedule your initial consultation.
Daniel Hunt is lead attorney and owner at Law Offices of Daniel Hunt. He is also a California State Bar Certified Legal Specialist in Estate Planning, Trusts & Probate Law.