(1) Wills: Execution Requirements

Question 1

A Will is valid in CA if?

Answer 1

will is valid in California if it is valid under (a)under california law; (b) the state where the will was executed; or (c) the law of the state where the testator was domiciled at the time of executed or death.

Question 2

At what time are the terms of the will given effect?

Answer 2

The terms of a will are given effect at the time the will is probated or after the testators death.

Question 3

CA will execution requirements

Answer 3

In CA a valid will requires (1) a testator 18 years old or older who is of sound mind; (2) a writing concerning the distribution of property upon death; (3) signed by the testator or someone at the testators direction while in the testators presence; (4) the signing must be witnessed by two disinterested individuals (both must be present at the same time); (5) the witnesses must sign the writing during the testators lifetime; AND (6) the witnesses must understand that they signed the testators will.

Question 4

2009 and After witness requirements

Answer 4

2009 and after a will that does not meet the witness requirements may still be admitted to probate if by clear and convincing evidence the testator intended the document to be their will at the time it was signed.

Question 5

Conservators and Will execution

Answer 5

A conservator may make a will for a conservatee (a person the court has determined requires a conservator to handle their finances because of physical/mental limitations) if authorized to do so by a court order. A conservatee who is mentally competent has the right to make, revoke or amend a will made by a conservator.

Question 6

Definition & Rule

Holographic Will

Answer 6

Definition: A holographic will is a handwritten will signed by the testator but not witnessed.

Rule: In CA a holographic will is valid if signed by the testator and all material terms of the will are in the testators handwriting. Material terms include the name of the beneficiaries and the gifts they will receive.
*Any portion not devised by the holographic will, will pass by intestacy.

Question 7

Date Requirement

Holographic Will

Answer 7

A holographic will does not need to be dated except when: (a) there is an issue with testamentary capacity; OR (b) there is a possibility that two or more wills should be probated which are inconsistent – in such instance the holographic will is invalid to the extent of the inconsistency (unless the time of its execution is established to be after the date of execution of the other will).

Question 8

Codicil

Answer 8

A codicil must be executed under the same formalities as a will or holographic will.