What Makes a Will Valid in California to Probate?
Probate is the legal term used in presenting a will to the probate court for filing (“to probate a will”). A will is probated through a specific process. This process makes sure all the testator’s debts are satisfied in full before the assets are distributed to beneficiaries. If a valid will is probated, the assets of the estate will be transferred according to the terms of the will. If an estate is probated without a valid will, California State law will specify who gets the assets of the estate. So, what makes a will valid in California to Probate?
Under California Probate Code section 6110, a will is valid in California to probate if it is drafted and executed in the following way:
A Will Must Be In Writing: A will must be in writing to be considered valid. The will can be hand-written or typed. Making changes to a written will can result in possible legal challenges if the changes are not done correctly. For example, if changes to a will are made by crossing out parts or adding new sections by hand, someone may challenge whether the changes were made before or after the document was signed. Such a challenge could result in the will being determined to be invalid. A person can also challenge who made the changes. It is best to completely make a new will instead of making handwritten changes.
A Will must Be Signed and Dated By the Testator: The testator (person making the will) must be at least 18 years old and of a “sound mind” when signing the will. Of sound mind means that a person has the legal capacity to think, reason, and understand for oneself. If a person is unable to do any of these things, their will may be challenged during probate. As a testator, you want to be of sound mind when making and signing a will. Nevertheless, a diminished mental capacity does not necessarily prevent someone from creating a will.
A Will Must Be Signed By Witnesses: California Probate law requires a will to be signed by at least two people. Each witness must be present at the same time, witness the signing of the will, or the testator’s acknowledgment of the signature, and acknowledge that what they are signing is, in fact, the testator’s will. The witnesses must also sign an affidavit acknowledging the testator’s mental capacity.
A Will Must Identify Beneficiaries: A California will may gift property of the estate to any person or business that the will maker has chosen. All gifts of property should be clearly identified to make sure the will is deemed valid during the probate process.
The Importance of Probating a Valid Will
It is important to check your will when certain changes in life occur. The following life changes could result in your will being deemed invalid:
Divorce: If the testator gets divorced, this can impact the validity of his/her will if they were to give the contents of their estate to their spouse.
Joint Tenancy & Living Trust: If you buy property after your will is formed, and hold property as a joint tenant or in a living trust, it will not be able, or need, to be probated.
Mental Capacity: If your mental capacity diminishes over the years, and you make changes to your will, it may later be challenged during probate on the grounds that you did not have the mental capacity.
The Probate Process Validates a Will
During the formal probate proceeding, the California probate court will make the final decision whether a will is valid, legal and binding. As mentioned above, if your will is determined to be invalid, your estate will pass through intestacy and be administered according to California intestacy laws. For example, a surviving spouse could receive all the decedent’s community property, and part of his/her separate property. The remaining separate property would go to children, grandchildren, parents, grandparents, siblings, nieces, etc.
Get Help Preparing a Will That is Valid in California
When writing and signing your will, make sure it is valid to prevent the laws of intestacy from determining the distribution of your estate. Contact A People’s Choice for legal help in drafting your valid will.