Are oral wills allowed?
Michael stood shaking before the probate judge, desperately trying to explain his father’s final wishes. His father, a seasoned sailor, had verbally outlined his estate plan just days before a sudden heart attack. The judge, however, was unmoved. California law requires wills to be in writing, and Michael’s father’s heartfelt, but unwritten, instructions carried no legal weight. The cost? Years of probate litigation and a fractured family, all because a validly executed will didn’t exist.
What is a holographic will and is it valid in California?
While the vast majority of wills must be typed or printed, California does recognize handwritten wills, known as holographic wills. However, they are subject to very strict requirements. The entire will—every material provision—must be entirely in the testator’s (the person making the will) handwriting. Pre-printed forms or any typed portion will invalidate the entire document. While easier to create, these wills are frequently challenged due to questions regarding intent and clarity. I’ve seen numerous cases where seemingly clear handwriting becomes ambiguous under scrutiny, leading to costly litigation.
Can a will be made verbally, or “nuncupative” will?
Generally, no. California law does not allow for wills to be created solely through oral statements. These are known as nuncupative wills, and they are largely relics of the past. There is a narrow exception for members of the Armed Forces in actual military service, and during wartime, facing imminent peril. Even then, the requirements are stringent and documentation is crucial. For the vast majority of Californians, a valid will must be in writing.
What happens if someone makes a statement about how they want their property distributed, but doesn’t create a formal will?
Such statements, while potentially expressing intent, do not constitute a legally binding will. California operates under intestate succession laws when someone dies without a valid will. This means the state dictates how the person’s property is distributed amongst their heirs, based on a pre-defined hierarchy. This can lead to outcomes drastically different from what the deceased person desired. Furthermore, even if the statement seems clear, proving it was the person’s final intention can be exceptionally difficult and expensive, potentially requiring extensive court battles. As a CPA as well as an attorney, I understand the tax implications of intestacy can be significant.
What are the consequences of not having a properly executed will?
The consequences can be substantial. First, the probate process will be far more complex and time-consuming. Without a will, a court must appoint an administrator to manage the estate, which adds costs and delays. If the will fails, assets may fall under intestacy, though estates under $208,850 (effective April 1, 2025) might still avoid full probate. Second, the distribution of assets will be determined by state law, which may not align with the deceased’s wishes. Third, disputes among family members are far more likely. I strongly advise my clients to consider a self-proving affidavit – using Probate Code § 8220 to satisfy the court’s proof requirements immediately, avoiding the need to track down witnesses years later.
Why is it crucial to have a will prepared by an experienced attorney?
Estate planning is far more complex than simply filling out a form. A qualified attorney can ensure your will is legally sound, reflects your specific wishes, and minimizes potential tax liabilities. They can also advise you on issues such as trusts, powers of attorney, and advance healthcare directives. Furthermore, a lawyer can help you navigate the complexities of RUFADAA to ensure your digital assets are properly managed. A properly drafted will is an investment in your family’s future and can save them significant stress and expense down the road. You can find resources at the State Bar of California website.
What are the specific requirements for witnessing a will?
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.
To make sure your will stands up in court, read our insights on using a self-proving affidavit for a will to get expert advice. I have seen valid wills thrown out of court simply because the witnesses were not present at the same time or failed to sign in the correct order. You deserve the assurance that comes with a professionally supervised execution process right here in Temecula. Reach out to us now, and let us help you turn your estate plan into a legally binding reality.
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.
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The Law Firm of Steven F. Bliss Esq.43920 Margarita Rd Ste F
Temecula, CA 92592
(951) 223-7000
