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Requirements For A Valid Will

January 3, 2017

 

A will is one of the most important documents an individual can create over the course of his or her life. The two primary functions many individuals choose to address when creating their will are, (1) determination of how assets will be distributed after the testator (person creating the will) passes away, and (2) appointment of an executor to manage the testator’s affairs after he or she passes away. Unfortunately, many people fail to neglect requirements that need to be met in order for a will to be validly recognized in California, thus rendering their will void.

 

In California, the laws regarding the valid execution and witnessing of a Will are set forth in the California Probate Code; Division 6 Wills and Intestate Succession; Part 1 Wills; Chapter 1 General Provisions Section 6100; Chapter 2 Execution of Wills, Sections 6110 & 6112; and, Division 7 Administration of Estates of Decedents; Part 2 Opening Estate Administration; Chapter 3 Probate of Will; Article 2 Proof of Will, Section 8220. Here are some basic requirements in order to create a valid and lasting will:

 

A Valid Will Must Be In Writing

 

For security reasons, a will should be typed to avoid fraudulent tampering of the will’s essential provisions. However, this is not legally required in California. Residents of California have the option to create what is known as a holographic will. A holographic will is essentially a handwritten will created by the testator that includes all material provisions of the will.

 

A Valid Will Must Have Two Witnesses In Most Cases

 

Unless an individual chooses to create a holographic will, a will created in California must have two competent witnesses present at the same time. It is common practice for both of the witnesses to be “disinterested,” meaning they are not beneficiaries of the will. The two witnesses will be required to sign the will and must be fully informed that they are indeed signing the testator’s formal will. The witnesses must be present for the testator’s signing of the will. A holographic will does not require witnesses.

 

A Valid Will Must Be Signed

 

A valid will must be signed by the testator regardless of whether the will is holographic or not. If the testator is unable to sign the formal will, a party will be elected by the testator to sign the will on his or her behalf. A person signing the will on behalf of the testator must do so in the presence of the testator and at the testator’s direction. If electing to create a holographic will, the testator must sign and date the will.

 

A slight defect can create a number of issues in determining the validity of a will, and it is best to consult the professional opinion of an attorney. If you have any questions about the process of creating a will, please feel free to contact Aziz Legal by phone or email at (408) 203-4627 or abid@azizlegal.com.

 

This article is merely informational and is not intended to be used as legal advice. Use of any information from this article is for general information only and does not represent personal legal or tax advice, either express or implied.  Readers are encouraged to consult Aziz Legal, or another attorney, for any specific legal matters.

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