Are attestation requirements different for handwritten wills?
As an Estate Planning Attorney and CPA in Temecula, California, I often encounter clients who believe a handwritten will – what’s known as a holographic will – is “good enough.” While California does recognize holographic wills, the attestation requirements are significantly different—and often misunderstood—compared to a typed, formally witnessed will. I recently worked with Robert, whose mother had meticulously handwritten a will, believing it required no witnesses. Unfortunately, the will was challenged in probate because she hadn’t fully complied with the law, leading to substantial legal fees and delays. The frustration was immense, and entirely preventable with proper guidance.
What is a Holographic Will in California?
A holographic will is one entirely written in the testator’s (the person making the will) own handwriting and signed by them. This means every material provision – not just the signature – must be handwritten. A pre-printed form with handwritten portions will not qualify as holographic. The intent is to allow someone to create a valid will in an emergency, even without access to a typewriter or witnesses. However, this ease comes with strict requirements.
How Does Attestation Differ for Holographic Wills?
Unlike a traditional will, a holographic will doesn’t require witnesses at the time of execution. This is the key difference. However, the will must be fully handwritten and signed. The challenge comes after the testator’s death. The handwriting must be conclusively proven to be theirs. This often necessitates a forensic handwriting analysis, which can be costly and time-consuming. If the handwriting isn’t clearly identifiable as the testator’s, the will can be deemed invalid.
What if a Holographic Will Contains Both Handwriting and Typed Sections?
If a will combines handwritten and typed sections, it’s generally considered a statutory will. This means it’s treated as if it lacked proper attestation. While California’s Probate Code § 6110 allows for harmless error in will execution, relying on this exception is risky. A court may validate a flawed will by ‘clear and convincing evidence’ of intent, but this isn’t guaranteed, and legal costs can quickly escalate.
What About Self-Proving Affidavits with Holographic Wills?
A self-proving affidavit, which streamlines the probate process, isn’t applicable to holographic wills. Probate Code § 8220 details how these affidavits immediately satisfy proof requirements. Because holographic wills don’t involve witnesses at the time of creation, there’s no affidavit to sign. Instead, proof of the handwriting’s authenticity is established through other means.
What Happens if I Fail to Meet the Requirements?
If a holographic will fails to meet these requirements, it’s likely to be declared invalid by the court. In that scenario, the deceased’s assets will be distributed according to California’s intestacy laws – the laws governing how property is distributed when someone dies without a valid will. If the estate’s value exceeds the small estate threshold of $208,850 (effective April 1, 2025), a full probate proceeding will be necessary, potentially costing your heirs significant time and expense.
How Can I Ensure My Will is Valid?
While a holographic will can be valid, a properly drafted and witnessed will offers greater security and minimizes the risk of challenges. It’s essential to have at least two disinterested witnesses present when signing a traditional will. These witnesses must observe you signing the will and then sign it themselves in your presence. Furthermore, I strongly advise clients to consider a self-proving affidavit to further expedite the probate process. As a CPA, I also emphasize the importance of understanding the tax implications of your estate plan, including potential estate tax liabilities and the complexities of the step-up in basis. Even with a validly attested will, you must grant specific RUFADAA powers to access digital accounts.
You can learn more about probate procedures at the Riverside Superior Court’s website: Riverside Superior Court – Probate Division.
What should you do if a witness dies before you?
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 professional guidance on witnesses, read our latest article on definition of a disinterested witness to move forward confidently. 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
