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Will Formalities
In California, the formalities necessary to execute a valid will vary depending on the type of will that is being created. There are three types of wills recognized in California.
First, the non-holographic will, also referred to as the formal or attested will. Second, the holographic will, and finally the statutory will. California does not recognize nuncupative (oral) wills.
The formalities for each type of will are discussed below.
FORMAL (ATTESTED) WILL
- The will must be in writing.
- The will must be signed. California has no requirement for where the signature must be placed on the will. The signature requirement can be satisfied by one of the following:
- Signed by the testator (a mark may be used; see Cal. Civ. Code § 14).
- Signed in the testator's name by some other person in the testator's presence and by the testator's direction (known as a proxy signature; may be used even if testator is able to write).
- Signed by a conservator pursuant to a court order to make a will.
- The will must be witnessed. There is no minimum age requirement, the witnesses may not sign by proxy, and no specific location of the witness signatures is required. The testator need not sign in the witnesses' presence and the witnesses need not sign in the presence of the testator. The statute is silent on the necessary order of the signatures of the witnesses and testator. The will must be witnessed by at least two persons, each of whom are:
- present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will (known as publication); and
- understand that the instrument they sign is the testator's will.
>> If there are only two witnesses and one of the witnesses was also a beneficiary, there is a presumption that the beneficiary procured the devise by duress, menace, fraud, or undue
influence. Cal. Prob. Code § 6112 (West 2000). However the validity of the will is not affected.
>> California permits the use of self proving affidavits. Cal. Prob. Code § 8220 (West 2000).
For general will requirements see Cal. Prob. Code § 6110 (West 2000).
HOLOGRAPHIC WILL
This type of will must be in writing and signed by the testator. There is no witnessing requirement. Even if there are sections of the will that are not in the testator's handwriting, as long as the material provisions are in the testator's handwriting, the will is valid.
Cal. Prob. Code § 6110 (West 2000).
STATUTORY WILL
Anyone of sound mind and over the age of 18 may execute a California statutory will. The testator shall complete the appropriate blanks and shall
sign the will. Each witness shall observe the testator's signing and each witness shall sign his or her name in the presence of the testator.
The execution of the attestation clause provided in the California statutory will by two or more witnesses satisfies Section 8220.
Cal. Prob. Code §§ 6220-22 (West 2000).
The entire statutory will is found in the California probate code. See Cal. Prob. Code § 6240 (West 2000).
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