Are nuncupative (oral) wills subject to attestation?
Robert stood trembling before the judge, the weight of his late wife’s unwritten wishes crushing him. He’d believed a simple verbal declaration to two friends was enough to distribute her cherished antique collection, but the court disagreed. The judge explained, with a disheartening finality, that California law severely restricts oral wills, and without proper execution – which, yes, includes specific attestation requirements even for a spoken will – his wife’s wishes would be dictated by intestate succession.
What are Nuncupative Wills (Oral Wills)?
Nuncupative, or oral, wills are wills made verbally rather than in writing. While the idea of a ‘deathbed confession’ as a valid will is romanticized, California law places very strict limitations on their use. They are only valid in extremely limited circumstances, specifically when made by someone in active military service or while facing imminent peril—like during a natural disaster. I’ve seen numerous cases where families mistakenly believe a verbal agreement is sufficient, only to discover the devastating consequences of failing to meet the legal requirements.
Do Nuncupative Wills Require Attestation?
Yes, even nuncupative wills require attestation, but the requirements are different from those for a traditional written will. California Probate Code § 6111 states that a nuncupative will is valid only if it’s declared orally to at least two witnesses who are both present at the time of the declaration. These witnesses must understand the testator’s (the person making the will) intentions, and the will must be reduced to writing, signed by the witnesses, within a reasonable time after the declaration.
What Attestation Requirements Must Be Met?
- Witness Presence: The witnesses must be present when the testator makes the oral declaration. It’s not enough for them to simply learn about it later.
- Competent Witnesses: The witnesses must be competent to testify in court – meaning they must be of sound mind and legal age.
- Understanding Intent: The witnesses must be able to understand the testator’s words and intentions.
- Written Reduction: The oral will must be immediately reduced to writing and signed by the witnesses. Delaying this step can invalidate the entire will.
What Happens if Attestation is Improper?
If the attestation requirements aren’t strictly met, the nuncupative will is invalid. The estate will then be distributed according to California’s laws of intestacy, which may not reflect the testator’s wishes at all. If the will fails, assets may fall under intestacy, though estates under $208,850 (effective April 1, 2025) might still avoid full probate. Even if the witnesses are well-intentioned, a technical error in attestation can have catastrophic consequences.
Why is Proper Attestation So Critical?
Proper attestation serves as a safeguard against fraud and ensures the authenticity of the will. It provides evidence that the testator genuinely intended to make a will and that the contents accurately reflect their wishes. As an attorney and CPA, I understand the intersection of estate planning and tax liabilities. Improperly executed wills can lead to unforeseen tax burdens and disputes among beneficiaries. Moreover, a validly attested will—even an oral one—can help minimize challenges during probate.
What About Self-Proving Affidavits and Nuncupative Wills?
A self-proving affidavit, while standard for written wills, doesn’t apply to nuncupative wills. Probate Code § 8220 dictates the use of self-proving affidavits to simplify probate by eliminating the need to locate and question witnesses years later, but this applies exclusively to written wills. With a nuncupative will, the witnesses’ testimony remains crucial for establishing validity.
I strongly advise anyone considering an oral will to consult with an estate planning attorney. While legally permissible in limited circumstances, they are fraught with potential pitfalls. A properly drafted written will, with meticulous attestation, provides far greater certainty and protects your loved ones from unnecessary hardship. You can find more information about the probate process at Riverside Superior Court – Probate Division.
How do you ensure your will is ‘self-proving’ in probate court?
Many people mistakenly believe that simply getting a document notarized makes it a valid will, but in California, this is often a fatal error. Unless specific statutory requirements are met, a stamp alone is insufficient.
- Notary vs. Witness: A notary verifies identity; a witness verifies capacity and intent.
- The Rule: California generally requires two witnesses to be present.
- Exceptions: While holographic wills exist, they are prone to expensive legal challenges.
For a deeper dive into the law, see our post covering understanding California Probate Code section 6110 to dive deeper into the topic. 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
