Posts tagged California Satutory Will
What is a witnessed Will?

California recognizes 4 types of Wills:

  1. Witnessed Will - A written Will that is signed by the Testator and witnessed by 2 people who also sign the Will. 
  2. Holographic Will - A Will that is written in the Testator's own handwriting.
  3. California Statutory Will - A form Will created by the California legislature that has "fill-in-the-blank" sections that the Testator can fill in. It must be witnessed by 2 people who also sign the Will.
  4. Uniform International Will - A Will that conforms to the requirements of the Uniform International Wills Act. It must be witnessed by 2 people who also sign the Will.

Estate planning lawyers primarily work with witnessed Wills, as it is generally the most formal of the ones stated above. The requirements of a witnessed Will are outlined in California Probate Code Section 6110, which provides:

(a) Except as provided in this part, a will shall be in writing and satisfy the requirements of this section.

(b) The will shall be signed by one of the following:

(1) By the testator.

(2) In the testator’s name by some other person in the testator’s presence and by the testator’s direction.

(3) By a conservator pursuant to a court order to make a will under Section 2580.

(c) (1) Except as provided in paragraph (2), the will shall be witnessed by being signed, during the testator’s lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator’s acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator’s will.

(2) If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator’s will.

As mentioned in part (b)(1) above, the Testator doesn't need to be the one who signs the Will so long as the person signing the Testator's name is doing so in the Testator's presence and at his or her direction. In addition, the witnesses must be disinterested parties and competent individuals. Finally, although the best practice is that the witnesses sign their names on the Will immediately after the Testator signs his or her name on the Will, part (c)(1) above, states that the witnesses need only sign their names on the will "during the testator's lifetime".

Because of the rules involved, estate planning lawyers are often hesitant to let the client personally oversee the signing of Wills and other estate planning documents. Best practice is to go to your estate planning lawyer's office so that the lawyer and the professional staff can ensure they are done correctly.