Unfortunately, holographic wills executed in California are often challenged during the probate process. For the court to hold them as valid, these wills must be clearly drafted and successfully executed. Therefore, at A People’s Choice, we help our clients draft legally valid wills executed in the presence of two witnesses. That said, it is always best to avoid holographic wills altogether due to potential negative consequences.
Elements of Valid Holographic Wills in California
A holographic will is a last will and testament that the testator writes and signs entirely by hand. While not all states accept holographic wills, California does. More specifically, Probate Code section 6111 states that valid holographic wills in California require the following:
Testator’s dated signature or other’s signature under the direction and in the presence of the testator
Note that California law does not require testators to sign holographic wills in the presence of a witness.
Material provisions written by the testator
Within their will, testators should include the following information:
- Their legal full name and current place of residence;
- Their intent of writing the holographic will;
- Whether any previously written wills will be invalid after signing the holographic will; and
- How their assets should be distributed.
Testator’s testamentary capacity at the time of drafting the holographic will
In an effort to establish mental soundness, the testator should include statements about why they prefer to leave specific bequests to certain parties.
Notarization of Holographic Wills in California
Under California probate law, the court does not require notarization of holographic wills to deem them valid. In fact, testamentary instruments generally do not have to be notarized in California. As a result, many notaries will refer testators to attorneys when asked to notarize a will.
Consequences of an Invalid Holographic Will
Probate courts often challenge holographic wills in California because they are often signed outside the presence of a witness. Therefore, the court must be convinced that the entire will is in the testator’s handwriting and that it accurately represents the testator’s last known wishes about their estate. However, if the court deems the holographic will invalid, they may instead distribute the testator’s estate according to the laws of intestate succession. In other words, the testator’s intended beneficiaries may not receive the property.
Clearly, completing and executing a holographic will correctly is an imperative part of the estate planning process. Contact A People’s Choice for more information about how our estate planning services can help you create your will. Call us at 800-747-2780 to learn more.