We’ve probably all seen a movie or TV show with a scene where someone is dying and trying to make a will. Usually, this involves the person saying a line like “I, John Smith, being of sound mind and body, do make this my last will and testament…”
Hollywood artistic license plays a large part in what you see on TV and in the movies, but the question of how to make a will is a good one. A post of two ago, I went over what happens to your stuff if you die without a will. Human nature makes it difficult for most people to imagine themselves dying, but death happens to all of us. Making a will doesn’t mean you hope to die, but it does make it easier for your friends and family or whoever else has to deal with the aftermath of you passing away. Having a will also makes it more likely that the stuff you’ve worked hard for and accumulated over your life actually goes to the people that you want to get it.
In the United States, the laws and procedures by which you make a will are determined by each state. In California, the process to make a will is described in California Probate Code Section 6110 which specifies the following requirements. The person making the will is called the “testator”. Writing a will is also unlike writing any other document because the person who knows the most about the document (i.e. the will) will be dead by the time any questions arise about what this phrase or that phrase in the will was intended to mean. With any other document, the person who wrote the document and is most likely to know the answer to any interpretation questions is still around.
- The will has to be in writing. Oral wills are not recognized in California. The term for a will made orally is “nuncupative will”.
- The will needs to be signed during the testator’s lifetime either by (a) the testator or (b) a 3rd party acting on the testator’s behalf in the testator’s presence and at the testator’s direction. (b) might have to be done if the testator is mentally fine, but is physically unable to sign their name anymore due to medical problems;
- The signing of the will needs to be witnessed by at least two persons who are present at the same time and either (a) witness the testator signing the will, or (b) the testator acknowledging or admitting to both witnesses that an existing signature is theirs. The two witnesses must also understand that the document the testator has signed or acknowledged/admitted is the testator’s will. The two witnesses must also sign the testator’s will as witnesses.
Surprisingly, the California Probate Code does not require that a will have a date on it, but practically-speaking, it is a really good idea to have a date on a will in order to differentiate between different versions.
The precise requirements for a witness to a will in California are in California Probate Code section 6112. Since two is the minimum number of witnesses, it is a good idea to have additional witnesses just to be safe.
California also recognizes something called a holographic will, which is a will made of holograms. Kidding. Under California Probate Code section 6111, a holographic will is one that is written out in the testator’s own handwriting. A holographic will does not need to have witnesses.
All of this is meant to be just a quick introduction as to how to make a will in California. If you have any questions, I would encourage you to find an attorney to pose them to.
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