Are professional witnesses ever used?
James stood pale and defeated, watching his inheritance slip away. The will, meticulously drafted years ago, was deemed invalid because the notary – a ‘professional witness’ hired solely for the attestation – lacked personal knowledge of James’ signature. It wasn’t a matter of fraud, but a technicality – the notary couldn’t honestly attest to witnessing the signing, as they’d simply been handed the document in a coffee shop.
What is a “Professional Witness” and Why are They Problematic?
The concept of a “professional witness” – someone paid to simply be present for the signing of a will or trust – is increasingly common, especially with mobile notaries. While seemingly convenient, it introduces significant legal risk in California. The fundamental requirement for valid attestation isn’t merely presence; it’s genuine witnessing – meaning the notary must actually see the signing and be able to attest to the client’s identity and willingness.
I often advise clients that relying on a stranger with no prior relationship to truthfully attest is a gamble. A disinterested witness must be someone who isn’t a beneficiary or otherwise connected to the estate. But simply being ‘disinterested’ financially isn’t enough. They must have a genuine recollection of the signing.
What Does California Law Require for Valid Attestation?
California Probate Code is very specific. A valid will requires at least two witnesses, and those witnesses must attest to the testator’s (the person making the will) signing, or acknowledge that they saw the testator sign, or that the testator acknowledged the will to them.
If a witness is ‘interested’ (a beneficiary, for example), the law provides a purging statute. California Probate Code § 6112 states that if an interested witness receives a benefit from the will, that gift is void – unless there are two other disinterested witnesses. However, even if the gift is voided, the will itself often remains valid. The key is ensuring you have sufficient disinterested witnesses. Relying solely on a notary who doesn’t actually witness the signing is a risky move.
What if a Witness Later Claims They Didn’t See the Signing?
This is the nightmare scenario. If a witness recants their testimony – claiming they were misled or didn’t actually see the signing – the will can be challenged in probate court. The burden of proof then shifts to the proponent of the will to prove the validity of the attestation.
This is where a self-proving affidavit, authorized by Probate Code § 8220, can be invaluable. A properly executed affidavit, signed by the testator and witnesses before a notary, satisfies the court’s proof requirements immediately, avoiding the need to track down witnesses years later to testify. However, the affidavit is only valid if the underlying attestation was valid in the first place.
How Can I Ensure My Will is Validly Executed?
I always recommend the following:
- Choose witnesses carefully: Select individuals who genuinely know you, are not beneficiaries, and will be readily available if needed in the future.
- Witness the signing in person: Ensure the witnesses are physically present and see you sign the will.
- Use a self-proving affidavit: This can streamline the probate process and avoid the need to locate witnesses later.
- Consult with an estate planning attorney: I can guide you through the process and ensure your will is validly executed under California law.
Remember, even a seemingly small mistake in execution can have devastating consequences. Proper planning and attention to detail are essential to protect your assets and ensure your wishes are carried out.
As a CPA as well as an attorney, I understand the financial risks of improper execution. Tax liabilities, potential loss of the step-up in basis of assets, and costly legal battles are all potential consequences. It’s a complex area, and professional guidance is crucial.
Riverside Superior Court – Probate Division
What is the role of an attestation clause in a will?
The “Harmless Error” rule in California allows for some leeway, but relying on it is a gamble that costs thousands in legal fees. Why risk your family’s inheritance on a judge’s discretion?
- Proper Execution: Sign in the presence of two witnesses who also sign.
- Self-Proving: Use an affidavit to avoid hunting down witnesses later.
- Professional Help: Ensure compliance with Probate Code Section 6110.
If you are preparing to sign your documents, we recommend reading our guide on witness requirements for a California will to ensure validity. Whether you are worried about the validity of an old will or preparing to sign a new one, expert supervision is your best defense against future contests. We are dedicated to providing rigorous legal support to families in San Diego and Riverside Counties. Call us today to schedule a signing appointment and take the final step in protecting your family.
About Steve Bliss: An estate planning attorney in Temecula
The Law Firm of Steven F. Bliss Esq. is a dedicated legal firm serving Temecula, Riverside County, and the Inland Empire. Led by Steven F. Bliss, the firm offers a unique advantage: Steve is an experienced CPA & Estate Planning Lawyer.
Whether the court requires a formal probate or allows for an unsupervised process, having a skilled attorney is essential to avoid delays. Don’t face the costly and confusing legal process alone—call attorney Steve Bliss today.
Visit The Law Firm of Steven F. Bliss Esq:
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The Law Firm of Steven F. Bliss Esq.43920 Margarita Rd Ste F
Temecula, CA 92592
(951) 223-7000
