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Drafting a Will in California

Posted by Michael Geller | Oct 01, 2021 | 0 Comments

If you want to draft a Last Will and Testament (also simply referred to as a “will”), it probably means you want to take steps to protect your hard-earned assets and protect your loved ones. A will is a legal document that formally sets forth your wishes and preferences for how your property should be distributed and what should be done with any minor children (if applicable). A will is the document where you name a personal representative who will be responsible for settling your affairs.

What Law Governs the Creation of a Will?

The legal requirements for drafting a will in California can be located in California Probate Code § 6100.

What Makes a Valid Will?

In order to draft a legally valid will in California, certain legal requirements must be met. Specifically, the legal requirements include:

  • The testator must be an individual who is 18 years of age or older and who is of sound mind;
  • The will must be in writing;
  • The will must be signed by the testator (or in his or her presence and directions); and
  • The will must be signed in the presence of at least two witnesses who understand that the instrument they witnessed being signed is a will

Although there are various exceptions and special rules, these are the standard requirements for California wills.

Drafting a Will Without Witnesses

During the Coronavirus pandemic, being around other people can be extremely challenging (and potentially dangerous). Fortunately, California law allows a will to be submitted to court for review, as long as it is “self-proved.” Basically, a self-proved will is capable of being admitted to probate court without the testimony of either witness to the will, according to California Probate Code § 8220. However, when a will is not self-proved, the court will require testimony from witnesses, or other proof, to establish that the will is what it claims to be.

How Someone Challenges a Will

In California, contesting the validity or veracity of a will is fairly common. The interest in contesting a will is typically triggered when someone disagrees with how a decedent's estate is being distributed or they believe they should have received a specific share of the estate. Probate litigation typically commences when an individual with a viable interest in an estate decides to file a petition challenging a particular aspect of the will.

Under California law, there are generally four legal grounds that can be utilized to challenge the validity of a will:

  • There is a question about testamentary capacity;
  • There is a suspicion of undue influence in preparing or executing the will;
  • The will was not signed properly; and
  • The testator was fraudulently induced into creating the will or including certain provisions in the will.

Each of these legal challenges present a unique set of issues. It is also important to highlight the fact that succeeding in a will contest can be difficult because medical records typically need to be obtained, witness testimony needs to be provided and experts may need to be retained for their input. In addition, contesting a will can be quite expensive and could take months or years to resolve.

Have Questions? Contact The Geller Firm Today

If you have questions about drafting a valid will in California, take action by contacting The Geller Firm. We can schedule an initial meeting between you and an estate planning attorney with our firm to have your individual needs assessed and all of your questions answered.

About the Author

Michael Geller

Michael Geller is an attorney licensed by the State Bar of California.


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