How does the location of remote witnesses affect the validity of a will?

Generally, the laws of the testator’s domicile govern the validity of the will's execution. Witnesses don’t necessarily need to be in the testator’s state, but must meet that state’s requirements. The witness’s state laws can also come into play if they contradict the execution standards.

Are remote witnesses subject to the laws of the testators state

Q: What happens if a will isn’t properly witnessed?

An improperly witnessed will can be deemed invalid, leading to distribution of assets according to intestacy laws and potentially lengthy and expensive probate proceedings. This can also open the estate up to challenges from family members.

Q: How can I ensure my will is validly executed?

Ensure all witnesses are physically present, disinterested, and that you use a self-proving affidavit. Also, grant specific powers to access digital assets to cover all aspects of the estate.

Are remote witnesses subject to the laws of the testator’s state?

Robert stood pale and defeated in my Temecula office, clutching a copy of his mother’s will. She’d meticulously planned everything, but signed it remotely during the height of the pandemic while wintering in Arizona. The will was now being challenged. The judge had ruled it invalid because the remote witness wasn’t compliant with California’s specific attestation rules, costing the estate nearly $75,000 in litigation fees and forcing it into a protracted probate process.

What are the rules regarding witnesses to a will?

A Southern California estate planning attorney is supervising the formal execution of a will with two disinterested witnesses in attendance in a private law office discussing: What are the rules regarding witnesses to a will

Properly executed wills require witnesses to attest to the testator’s (the person making the will) signature and acknowledgement of the document. These witnesses confirm the testator appeared to be of sound mind and signed willingly. But determining whose laws govern when witnesses are located remotely is a complex issue, especially post-pandemic. As an Estate Planning Attorney and CPA in Temecula, I often deal with clients who have assets across state lines, and it’s crucial to understand these nuances.

How did the pandemic change witnessing laws?

During the COVID-19 pandemic, many states, including California, temporarily allowed remote witnessing via audio-visual technology. This provided a lifeline for individuals unable to gather in person. However, these temporary allowances have largely expired. While California allowed temporary remote witnessing during the pandemic, strict adherence to current presence requirements is critical to avoid invalidation. Currently, California law generally requires witnesses to be physically present with the testator at the time of signing, unless a valid exception applies. This physical presence is not merely proximity; it’s a matter of confirming the signature’s authenticity in real-time.

Does the witness need to be in the testator’s state?

Generally, the laws of the testator’s domicile (their primary residence) govern the validity of the will’s execution. This means the witness doesn’t necessarily need to be physically located in the testator’s state, but they must meet the requirements of that state’s laws. For example, if the testator resides in California, the witness must meet California’s witnessing standards, even if the witness is in Arizona or Nevada. However, the laws of the witness’s state can come into play. If a witness’s actions violate their own state’s laws, that could cast doubt on their credibility and the validity of their attestation.

What happens if a will isn’t properly witnessed?

A will that isn’t properly witnessed is often deemed invalid. This can lead to several consequences. First, the estate will be subject to California’s intestacy laws, meaning assets will be distributed according to a pre-defined statutory formula rather than the testator’s wishes. If the will fails, assets may fall under intestacy, though estates under $208,850 (effective April 1, 2025) might still avoid full probate. The probate process can become lengthy and expensive, diminishing the value of the estate for beneficiaries. Secondly, challenges can arise from family members disputing the distribution of assets.

What about disinterested witnesses?

California law requires disinterested witnesses – meaning witnesses who don’t stand to benefit from the will. If a beneficiary is also a witness, this can jeopardize their inheritance. According to California Probate Code § 6112, interested witnesses risk voiding their gift unless there are two other disinterested witnesses, though the will itself often remains valid. This is a common mistake and one I often correct for clients. I always advise clients to use disinterested witnesses and document their absence of any potential benefit from the will.

How can I ensure my will is validly executed?

Proper execution is paramount. Here’s what I recommend:

Physical Presence: Ensure all witnesses are physically present with the testator at the time of signing.
Disinterested Witnesses: Choose witnesses who will not benefit from the will.
Self-Proving Affidavit: Use a self-proving affidavit, as outlined in Probate Code § 8220. This streamlines the probate process by providing immediate proof of valid execution.
Digital Assets: Grant specific powers to access digital accounts, remembering that even a validly attested will must grant specific RUFADAA powers to access digital accounts.

As both an Estate Planning Attorney and a CPA, I understand the interplay of legal and tax implications. Improper execution can trigger unexpected tax liabilities and complicate the administration of the estate. My expertise allows me to address these potential issues proactively, ensuring my clients’ wishes are honored and their estates are protected. Riverside Superior Court – Probate Division provides further resources.

How do you ensure your will survives a legal contest?

The most heartbreaking cases in probate court are not the ones where no will exists, but where a perfectly crafted will is thrown out due to a technical error. California law is specific about who can serve as a witness.

Strict Rules: Witnesses must generally be disinterested and present at the same time.
High Stakes: A single error can void the document, sending your estate into intestacy.
Legal Limits: Remember, the Statute of Limitations for legal malpractice is generally one year, so getting it right the first time is vital.

For a step-by-step look at the process, read our detailed guide on legal assistance with will execution to make a solid plan. A will is only as powerful as the signature at the bottom, and that signature must be witnessed correctly to survive a legal challenge. We specialize in guiding clients through the formal attestation process, ensuring that no technicality can undermine your final wishes. Please contact our team today to ensure your estate plan is signed, sealed, and legally secure.

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.