How to Make a Valid Will in California

Who Can Make a Will in California?

You must be at least 18 years old to make a will in California. Emancipated minors and members of the armed forces may make a will. A conservator may also make a will on behalf of the conservatee under court supervision (Prob. Code 6100(b)). The testator must be of sound mind: understand the nature of the testamentary act, understand and recollect the nature and situation of their property, and remember and understand their relations to living descendants, spouse, and parents (Prob. Code 6100.5)

Signing Requirements

Must be in writing. Can be typed, printed, or handwritten (holographic). Electronic-only wills are not currently recognized. If you are physically unable to sign, Another person may sign the testator's name in the testator's presence and by the testator's direction. A conservator may also sign under court authorization.

Witness Requirements in California

California requires 2 witnesses. Any generally competent person may serve as a witness. Interested witnesses do not invalidate the will but create a rebuttable presumption of undue influence for devises to them. Both witnesses must be present at the same time and must witness either the signing of the will or the testator's acknowledgment of the signature or the will. Witnesses must understand the instrument is the testator's will. Witnesses must sign during the testator's lifetime.

Interested witnesses: Interested witnesses create a presumption of duress, menace, fraud, or undue influence for the devise to that witness, unless rebutted or unless at least two other disinterested witnesses signed (Prob. Code 6112)

Notarization in California

Notarization is not required for a will to be valid in California. Not required. California uses an attestation clause with a statement under penalty of perjury rather than a traditional notarized self-proving affidavit

Self-Proving Affidavit

California allows a self-proving affidavit, which simplifies probate by eliminating the need for witnesses to testify in court. California uses a statement under penalty of perjury rather than a traditional notarized self-proving affidavit. The witnesses state under penalty of perjury that the testator was of legal age, appeared of sound mind, and was not under undue influence. A separate notarized affidavit is not required but can be used

Handwritten (Holographic) Wills

California does recognize holographic wills. Valid without witnesses if the signature and the material provisions are in the testator's handwriting. An undated holographic will is valid unless there is a conflict with another will or doubt about testamentary capacity during the execution period (Prob. Code 6111)

Electronic Wills

California does not currently recognize electronic wills. California does not currently recognize electronic wills. PDFs, scanned documents, and digital copies are not valid. However, California's harmless error doctrine (Prob. Code 6110(c)(2)) may allow courts to validate non-compliant documents upon clear and convincing evidence of testamentary intent

How to Revoke a Will in California

In California, a will can be revoked by:

• •Executing a subsequent will that revokes the prior will or is inconsistent with it
• •Physical act of burning, tearing, canceling, obliterating, or destroying the will with intent to revoke
• •Another person may perform the revocatory act in the testator's presence and by the testator's direction
• •By operation of law (dissolution of marriage revokes provisions for former spouse)

Prob. Code 6120-6122. A will is also revoked by operation of law upon dissolution of marriage as to provisions benefiting the former spouse

Special Provisions in California

California is a community property state. Each spouse owns an undivided one-half interest in community property. A testator may dispose of their half of community property and all separate property by will. No elective share statute because community property law protects the surviving spouse. California has the harmless error doctrine allowing probate of technically deficient wills upon clear and convincing evidence of testamentary intent (Prob. Code 6110(c)(2))

Relevant California Statutes

• Cal. Prob. Code 6100 (Who may make a will)
• Cal. Prob. Code 6100.5 (Testamentary capacity)
• Cal. Prob. Code 6110 (Witnessed wills; execution requirements)
• Cal. Prob. Code 6111 (Holographic wills)
• Cal. Prob. Code 6112 (Witnesses; interested witnesses)
• Cal. Prob. Code 6113 (Choice of law)
• Cal. Prob. Code 6120 (Revocation by subsequent will)
• Cal. Prob. Code 6121 (Revocation by physical act)