Posts tagged holographic will
What is a holographic Will?

Not all Wills must be witnessed. If the signature and material provisions are handwritten by the Testator, then it may qualify as a holographic Will. See California Probate Code Section 6111(a). Holographic Wills are generally done without the consultation of a lawyer and as a result contain often contain ambiguities or incomplete instructions as to how the Testator's assets are to be distributed. 

Commercially Printed Will?

California Probate Code Section 6111(c) states: "Any statement of testamentary intent contained in a holographic will may be set forth either in the testator’s own handwriting or as part of a commercially printed form will." Therefore, the use of commercially printed forms is permissible.


If the holographic Will is not dated, there are some situations in which it may be found partially invalid. California Probate Code Section 6111(b) states:

b) If a holographic will does not contain a statement as to the date of its execution and:

(1) If the omission results in doubt as to whether its provisions or the inconsistent provisions of another will are controlling, the holographic will is invalid to the extent of the inconsistency unless the time of its execution is established to be after the date of execution of the other will.

(2) If it is established that the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is established that it was executed at a time when the testator had testamentary capacity.

Holographic Wills can be helpful if drafted clearly enough. However, most laypeople who aren't familiar with the estate planning process are likely better off using the California Statutory Will form as an alternative to hiring a qualified estate planning lawyer.

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.

What is a Will? (A Brief Overview)

Every estate plan should have a Will as one of its components. Wills, however, can come in several varieties and have different requirements depending on which one you select.

Formal Witnessed Wills

A formal Will is usually produced on a word processor or other text editor. It has to be signed by you (the creator of the Will, also known as "Testator") and be witnessed by 2 witnesses. Best practice is to also include the date the Will was signed on the Will itself.

California Statutory Will

If you have a very simple situation, very little in the way of assets,  or an immediate need (e.g., before you travel) it may make sense for you to utilize the California Statutory Will.  This Will is essentially a form created with the Probate code of the State of California. (See California Probate Code Sections 6200-6243).

Holographic Will

A holographic Will is one that is completely hand-written by the Testator. It must be completely handwritten by the Testator but it does not require witnesses.  

Ancillary Provisions in the Will

The Will should also designate someone to act as your "Executor"--he or she will be the person in charge of making sure that your wishes are carried out. The Will is also where you may appoint a guardian for any minor children that you have.  Finally, you may have a "power of appointment" that another person granted you, which may require you to exercise that power in your Will by including a provision in it. 

Pour-Over Will

Wills that are created in conjunction with revocable living trusts are often referred to as "pour-over Wills". The reason is that the primary function of the Will is to "pour-over" the assets into the revocable living trust that you created after you die. In this context, the Will is essentially a back-up document in case you forgot to properly re-title certain assets in the name of your trust. As mentioned in prior posts, avoiding probate is a major goal for most clients, and in most counties, Los Angeles included, the probate process can often take over a year to complete.