Is your will valid according to state law?

by | Sep 23, 2021 | Estate Planning

A will allows you to dictate how you want the probate court to distribute your property upon your death. Having a will is very important, but it must comply with the law’s requirements to be valid. If your will isn’t valid, the probate court won’t divide your estate according to your wishes. Instead, the intestacy laws of California will determine the distribution of your assets and property as if you had never created a will.

A valid will in California

The Probate Code of California specifies the legal requirements of a will. If the testator does not execute the will properly according to the law, the court won’t carry out their wishes upon their death. A will is only valid if:

  • It is in writing, either handwritten or typed.
  • The testator or their conservator signs it. Another person can also sign it on behalf of the testator in their presence.
  • The testator was sound of mind when they signed it.
  • There were at least 2 witnesses when the testator signed it.
  • The witnesses signed it.

If the will does not comply with these specifications, it could be valid if the testator handwrote it and signed it before their death. Holographic or handwritten wills do not need witnesses. However, if a holographic will lacks the date of the execution, the court may not consider it as valid unless it is consistent and it is proven that the testator wrote it at a time when they had testamentary capacity.

Witnesses

At least two witnesses must sign the will. When doing so, they must have known that what they were signing was the testator’s will. It is important to note that a will beneficiary can be a witness only if two other uninterested parties sign it. If all the witnesses have an interest in the deceased’s property, the court would think that they forced the testator to sign it, and they will consider the will as invalid.

An invalid will

Having an invalid will does not mean that your property would be lost. With an invalid will, the court wouldn’t distribute the property and assets according to your wishes. Still, your family members would receive a share according to California’s laws of intestate succession. The state of California would only keep the estate if they don’t find any relatives to give it to. However, the distribution of your estate will be easier and faster if you ensure that the will you created is valid.