Holographic wills in California are often challenged during the probate process. Such wills must be clearly drafted and executed to be held as valid. At A People’s Choice, we highly encourage people to draft legally valid wills executed in the presence of two witnesses. It is always best to refrain from holographic wills altogether. If you want to make a California holographic will, read on to learn more about the downside of holographic wills in California. We will explain what the elements of a valid California holographic will are as well as the consequences of an invalid holographic will.
Elements of Valid Holographic Wills in California
A California holographic will is a last will and testament that is entirely handwritten and signed by the testator. Not all states accept holographic wills, but California does. Probate Code section 6111 states that in order for holographic wills in California to be valid, it must include the following elements:
- The will must be signed by the testator or signed by another person under the direction of the testator and in his/her presence;
- The material provisions of the holographic will must be written by the testator;
- The testator must have testamentary capacity at the time of drafting the holographic will; and
- The holographic will must be dated.
How to Make a California Holographic Will
When creating a holographic will, the entire will should be in the testator’s own handwriting. The date should appear at the top of the will and the following elements should be included:
- The legal full name of the testator and current place of residence;
- The intent of writing the holographic will and the testator’s mental capacity should be addressed;
- Whether any previously written wills are to be invalid as of the signing of the holographic will;
- How the assets of the testator’s estate should be distributed;
- The testator’s signature.
In an effort to establish mental soundness, it is in the testator’s best interest to include his/her own statements about why he/she prefers to leave specific bequests to one party.
Should Holographic Wills in California Be Notarized?
Under California probate law, a holographic will does not need to be notarized to be deemed valid. The law does not require for holographic wills in California to be signed in the presence of a witness. In general, testamentary instruments do not have to be notarized in California. It is not uncommon for notaries to refer testators to attorneys when asked to notarize a will.
Consequences of Invalid Holographic Will
Holographic wills in California are often challenged. Such wills are the easiest to challenge because they are often signed outside the presence of a witness. The court must be convinced that the entire holographic will is in the testator’s handwriting and that it was created to represent the testator’s last known wishes about his/her estate.
If the holographic will is deemed invalid, it can result in the testator’s estate being distributed according to the laws of intestate succession. This means that the testator’s intentions about who was to receive his/her property may not occur.
Contact A People’s Choice for more information about our estate planning services. Everyone needs a binding will and should draft and execute it according to California laws. If you want to create a will, we can help. Call us at 800-747-2780.