Are witness disqualifications common

Q: What makes a witness 'disqualified' in California?

In California, a witness who is also a beneficiary, a creditor, or closely related to a beneficiary can be considered 'disqualified', potentially invalidating their testimony. However, California Probate Code § 6112 dictates that the gift to that interested witness is voided, but the will itself remains valid, so long as there are two other disinterested witnesses.

Are witness disqualifications common?

James stood in my Temecula office, visibly shaken. His father’s will, meticulously drafted years ago, was being challenged – not because of its contents, but because the neighbor who signed as a witness had admitted to being a beneficiary under a separate, older trust. A seemingly minor detail, yet one that could unravel years of estate planning and leave his family facing significant legal hurdles. As both an Estate Planning Attorney and a CPA, I see these scenarios far too often. The cost of these oversights isn’t just legal fees; it’s the emotional toll on families during an already difficult time.

What makes a witness ‘disqualified’ in California?

A Temecula estate planning attorney is supervising the witnessed signing of a will with two disinterested witnesses observing the signing in a modern law office discussing: What makes a witness disqualified in California

In California, a valid will requires two witnesses, both of whom must be present at the signing and understand they are witnessing the execution of a will. However, simply being present isn’t enough. Certain relationships can disqualify a witness, potentially invalidating their testimony and throwing the entire will into question.

Beneficiary Status: A witness who is also a beneficiary under the will is generally considered a “disinterested” witness, meaning their testimony is suspect. However, California Probate Code § 6112 dictates that the gift to that interested witness is voided, but the will itself remains valid, so long as there are two other disinterested witnesses.
Creditor Status: If a witness is a creditor of the testator (the person making the will), it raises questions about potential bias.
Relationship to Beneficiaries: A close relationship – such as being married to a beneficiary – can also create grounds for disqualification.

How often do these disqualifications actually lead to a will being invalidated?

It’s surprisingly common. While not every disqualified witness automatically voids a will, it introduces significant legal risk. Often, families believe a properly signed document is ironclad, but fail to realize the intricate rules governing witness validity. If there’s only one valid witness, or if the opposing party successfully challenges the validity of both, the will could be deemed invalid. This means assets will be distributed according to California’s intestacy laws – essentially, as if the person died without a will. If the will fails, assets may fall under intestacy, though estates under $208,850 (effective April 1, 2025) might still avoid full probate.

Can mistakes in witnessing be ‘fixed’ after the fact?

Sometimes. Probate Code § 6110 allows the court to validate a flawed will if it’s convinced the testator intended it to be valid. However, relying on this “harmless error” provision is a gamble, and requires convincing evidence. It’s far better to avoid the issue altogether. Proper planning, including selecting disinterested witnesses and ensuring their understanding of their role, is the best defense.

I strongly recommend a self-proving affidavit be included with every will. Probate Code § 8220 explains that this document streamlines the probate process by eliminating the need to locate witnesses years later to confirm their signatures and testimony.

As a CPA, I also advise clients to consider the tax implications of estate planning. A valid will allows for careful tax planning, including maximizing the step-up in basis for inherited assets. Improper execution can lead to unforeseen tax liabilities and complications. And with the increasing complexity of digital assets, it’s vital that a validly attested will grant specific RUFADAA powers to access those accounts.

You can find more information about probate and estate planning on the Riverside Superior Court – Probate Division website.

What happens if a will is not properly witnessed?

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.

For expert insights into the signing ceremony, review our guide covering witness presence requirements during signing to avoid invalidation. 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.