Are special witnessing rules available for active-duty members?
Robert stood pale and shaken, clutching the invalid will of his fallen comrade. The will, meticulously drafted before deployment, was rendered useless because the notary public wasn’t physically present—a technicality that now threatened to unravel years of careful financial planning and leave his friend’s family destitute. This scenario, unfortunately, is far more common than you might think, especially involving our active-duty military personnel.
What are the standard witnessing requirements for a valid California will?
In California, a valid will requires at least two witnesses. These witnesses must be present at the same time as you – the testator – sign the will, and they must also sign the will themselves in your presence. Critically, “presence” traditionally meant physical presence. This presents significant challenges for service members stationed overseas, deployed at sea, or otherwise geographically separated from potential witnesses. However, recent legislation and established legal precedents offer some flexibility.
How does military service impact the witnessing process?
California law recognizes the unique circumstances faced by active-duty military personnel. Specifically, the law acknowledges that requiring strict physical presence can be unduly burdensome. While remote witnessing is generally not permitted, California Probate Code provides specific allowances for military personnel and their spouses. Essentially, remote witnessing via video conference is permitted if:
- The service member or spouse is on active duty.
- The service member or spouse is stationed at a military base or on a vessel away from the witnesses.
- The remote witnessing is conducted using audio-video technology allowing for real-time interaction.
What about temporary allowances during COVID-19?
While California allowed temporary remote witnessing during the pandemic, strict adherence to current presence requirements is critical to avoid invalidation. The temporary allowances have largely been rescinded, and reliance on those previous rules will likely result in a contested probate. It’s vital to understand the current, strict regulations.
Can a notary public stationed overseas witness a will?
Yes, a notary public commissioned in another state or country can witness a will if the will also meets the witnessing requirements of that jurisdiction. However, the will must still comply with California law to be valid here. It’s a good idea to consult with a California estate planning attorney to ensure compliance.
What happens if the witnessing requirements aren’t met?
If a will is improperly witnessed, it may be declared invalid by the probate court. If the will fails, assets may fall under intestacy, though estates under $208,850 (effective April 1, 2025) might still avoid full probate. This means your assets will be distributed according to California’s default rules, which may not align with your wishes. Contesting a will due to improper witnessing can be a lengthy and expensive legal battle, and there’s no guarantee of success.
What about digital assets and wills?
Even a validly attested will must grant specific RUFADAA powers to access digital accounts. Failing to account for digital assets – online accounts, cryptocurrency, and digital photos – can result in significant loss for your heirs. We routinely address this in our estate planning documents.
As an experienced Estate Planning Attorney and CPA in Temecula, California, I understand the complexities of military estate planning. My CPA license allows me to provide comprehensive financial planning and address the unique tax implications of estate administration, including the crucial step-up in basis for inherited assets. Improper execution of estate planning documents can lead to significant tax liabilities and financial hardship for your loved ones. We meticulously ensure compliance with all legal requirements to protect your family’s future. You can find more information on the Riverside Superior Court’s Probate Division website: Riverside Superior Court – Probate Division.
How can you ensure your final wishes are legally respected?
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 have specific concerns about validity, check out our resource on invalidating a will due to lack of notarization to minimize risks. The “signing ceremony” is a legal term of art for a reason; it is the moment your wishes become law, and it requires professional oversight to be valid. As a dual-licensed attorney and CPA, I ensure that every document is executed in strict compliance with the California Probate Code. Do not let a procedural mistake destroy your legacy—contact our office today to finalize your plan with confidence.
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:
Address:
The Law Firm of Steven F. Bliss Esq.43920 Margarita Rd Ste F
Temecula, CA 92592
(951) 223-7000
