A Valid Will

A Valid Will

            Without a valid will a person’s estate passes to their surviving heirs under intestate succession (i.e., “succession without a will”).   A valid will can determine who inherits assets in a decedent’s estate, who is the executor of the estate, what powers the executor has over the estate, and more (or less).  Litigation over the validity of a will can occur if an heir is unhappy because they inherit less under the will than under the laws of intestacy or if a beneficiary inherits less under the current will than the prior will. 

To be valid, a will must be properly executed by a person who, at the time he or she signs the will, is of sound mind and is acting both with testamentary intent and voluntarily, that is without duress, menace, fraud or undue influence (which the law sometimes presumes exists in certain untrustworthy situations, like gifts to paid caregivers).  

In California, a will is properly executed if it satisfies any one of various standards, as  relevant, to the document’s execution (section 6113 of the Probate Code).    

First, a will is valid if it either satisfies the standard will requirements or there is clear and convincing evidence supporting a will that does not meet the standard requirements (section 6110 of the Probate Code).  Otherwise, a handwritten will is valid if it satisfies the holographic (handwritten) will requirements (section 6111 of the Probate Code).

The standard will requirements are that the will be signed by the testator, i.e. the person making the will, and be witnessed by two persons at the same time.  The two witnesses must see the testator either sign the will or else acknowledge the will in their presence and the witnesses must understand that it is the testator’s will.  

Otherwise, failing to meet all standard requirements, the will may still be valid if, “clear and convincing evidence” is provided to the probate court to show that, “at the time the testator signed the will, the testator intended the will to constitute the testator’s will”. 

Alternatively, the testator may write a holographic (handwritten) will with the material provisions in his or her own handwriting; no witnesses are required.  The holographic will should demonstrate testamentary intent, i.e., the testator’s intention to gift property at death, and be signed and dated by the testator.

 Second, the will is also valid if it takes the form of a California Statutory Will set out in section 6200 et. seq of the Probate Code.  California’s statutory will form allows for a person to select from amongst different distribution scenarios by signing his or her name in the associated box to indicate a choice of distribution and by writing in relevant information, such as the names of the beneficiaries and the specific gifts.  The statutory will must be signed and dated by the testator in the presence of two witnesses who sign and date a witness declaration.

Third, a will is also valid in California if it was validly executed elsewhere under another state’s law or was validly executed, either at the time of executing the will or at the time of the testator’s death, under the laws of the place where the testator was domiciled (i.e., usually lived as a permanent resident), had a dwelling (i.e., including a part time residence), or was a national (section 6113© of the Probate Code).

Next, an adult person of sound mind may execute a will in California (section 6100 of the Probate Code).  A person is presumed to have capacity to execute a will, unless the presumption is rebutted (section 810 of the Probate Code).   More specifically, California requires the testator (1) to understand the nature of making a will; (2) understand and remember the nature and situation of their property; and (3) remember and understand their relations to their living family and those whose interests are affected by the will (section 6100.5 of the Probate Code). 

The foregoing is not legal advice.  Consult an attorney if confronting these issues. Dennis A. Fordham, attorney, is a State Bar-Certified Specialist in estate planning, probate and trust law. His office is at 870 S. Main St., Lakeport, Calif. He can be reached at Dennis@DennisFordhamLaw.com and 707-263-3235.