The California Probate Code defines a will to include any testamentary instrument which appoints an executor or revokes or revises another will. California recognizes witnessed wills, statutory form wills and holographic wills.
A witnessed will is valid in California if its execution complies with California laws or the laws of the state which it was executed. The will must be:
signed by the testator or someone else in the testator's presence, and
witnessed by at least two people that are present and understand that the instrument signed is the testator's will.
The testator's signature on the will is sometimes referred to as the testator's authentication.
In a statutory form will, any person over the age of 18 and of sound mind may execute such a form. You may find examples of such wills on the California Bar site at: www.calbar.ca.gov. A statutory will requires two witnesses and may be amended through a codicil or revoked.
A holographic will is a will that is handwritten by the testator and may be valid if the signature and the material provisions of the will are in the testator's handwriting. A holographic will does not require witnesses nor does it require a formal date.
A codicil is a testamentary instrument that supplements the validity of an earlier will. It may be done in any format and republishes an earlier will so that it changes only the select provisions of a previous instrument.
Revocation of a Will
There are a number of different ways to revoke a will with the most common being a later will that contains language of revocation of any prior instrument. Another way to revoke a will is to destroy it with the intent to revoke. Merely damaging a will, such as tearing its corners is not enough to affect its validity.
California follows dependent revocation where the law presumes that a testator has a valid will. This means that if a person revokes a prior valid will and it turns out to be invalid, the law will presume validity. The revocation of the earlier will is therefore dependent on the validity of the later will. It would be beneficial to maintain a photocopy of a revoked will for this reason.
Probate is the legal process to prove that a will is valid. Probate proceedings are held in the superior court where a executor is appointed to handle the estate of the deceased.
A will controls the disposition of the testator's personal property according to the law of the place where the testator was domiciled at the time of the testator's death.
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.