Why is a Self-Proving Affidavit Important?

To avoid the need to track down witnesses years later, a self-proving affidavit should be included. According to Probate Code § 8220, this affidavit provides a legally sufficient statement of proper execution, eliminating the need for witnesses to testify in court.

Are attestation laws strict or flexible - Socal Consumer Law Center

Are attestation laws strict or flexible?

Robert stared blankly at the probate judge, a cold sweat forming on his brow. His father’s will, meticulously drafted years ago, was being thrown out. The reason? A seemingly minor detail: the witnessing attorney hadn’t personally observed Robert’s father signing the document. The attorney had pre-signed the attestation clause, intending to fill in the date later. While seemingly innocuous, this technicality rendered the entire will invalid, leaving Robert facing a protracted and costly probate battle. This situation, unfortunately, is more common than people realize.

How Stringent Are California’s Attestation Requirements?

A Temecula estate planning attorney is supervising the attestation of a will with two adult witnesses observing the signing in a modern law office discussing: How Stringent Are Californias Attestation Requirements

California’s attestation laws are, unequivocally, strict. While the law aims to honor a person’s wishes as expressed in their will, it demands precise adherence to the statutory requirements for valid execution. This isn’t about reading between the lines; it’s about a clear, documented demonstration of testamentary intent. A technical error, even one seemingly minor, can provide grounds for a will contest, leading to potential invalidation and intestacy – where state law dictates how your assets are distributed, rather than your stated wishes.

What Does “Proper Attestation” Actually Mean?

Proper attestation means that the will must be signed by the testator (the person making the will) and by at least two witnesses, all in the presence of each other. Crucially, each witness must personally observe the testator signing the will. Pre-signing any portion of the document, even the attestation clause, is a dangerous practice. The witnesses must also sign the will themselves during the testator’s lifetime.

As an Estate Planning Attorney and CPA here in Temecula, I often see clients make the mistake of thinking a simple signature will suffice. However, it’s not just about the signature itself; it’s about the process and the evidence confirming that it was legally sound. My CPA license allows me to thoroughly evaluate the tax implications of estate plans, including the crucial step-up in basis benefits, and to proactively address potential liabilities that can arise from improper execution. A seemingly small oversight can lead to significant tax consequences for your heirs.

What Happens if a Witness Doesn’t Meet the Requirements?

If a witness doesn’t meet the statutory requirements, their attestation can be deemed invalid. This doesn’t automatically invalidate the entire will, however. According to California Probate Code § 6112, if a witness is also a beneficiary of the will (an “interested witness”), their gift may be voided unless there are at least two other disinterested witnesses. The will itself remains valid, but the beneficiary-witness loses their inheritance.

Furthermore, the law offers limited flexibility in cases of harmless error. Probate Code § 6110 allows a court to validate a flawed will based on “clear and convincing evidence” of the testator’s intent. However, relying on this exception is a risky gamble and can significantly increase legal fees.

The Importance of Self-Proving Affidavits

To avoid the need to track down witnesses years later, I strongly advise all clients to include a self-proving affidavit with their will. According to Probate Code § 8220, this affidavit, signed under oath, provides a legally sufficient statement of proper execution, eliminating the need for witnesses to testify in court. This significantly streamlines the probate process and reduces delays.

In today’s digital world, many wills also address digital assets. Even a validly attested will must grant specific RUFADAA (Revised Uniform Fiduciary Access to Digital Assets Act) powers to access these accounts. Without these powers, accessing your loved one’s online accounts – including financial institutions, social media, and email – can become a legal nightmare.

Witness Eligibility: Witnesses must be adults and capable of understanding the document.
Simultaneous Presence: All parties must be present at the same time and location.
Personal Observation: Witnesses must personally see the testator sign the will.

Given the strict requirements and potential pitfalls, it’s crucial to consult with an experienced Estate Planning Attorney to ensure your will is legally sound and accurately reflects your wishes. A small investment in professional guidance now can save your loved ones significant time, expense, and heartache in the future.

Riverside Superior Court – Probate Division

Is a handwritten will valid without witnesses in California?

While “holographic” (handwritten) wills are technically legal in California, they are notoriously difficult to prove in court. Without the formal structure of a witnessed attestation clause, judges are left to decipher intent.

Ambiguity: Handwritten notes often lack necessary legal language.
Probate Costs: Proving validity consumes time and money.
Thresholds: Even with the small estate limit rising to $208,850 in April 2025, a valid will is needed to direct those assets.

To navigate the requirements for validity, read our guide on witness presence requirements during signing to handle these matters correctly. 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.