While the specific requirements for a valid will vary from state to state, there are some general principles that apply across the board. In this article, we’ll focus on the specific legal requirements in California, guiding you through the process of creating a will that stands the test of time (and legal scrutiny!). Let’s dive in!

According to Cal. Prob. Code § 6110, a valid California will must be in writing. This means it must be handwritten (also known as a holographic will) or typed up on a computer. If you type up the will on the computer, you still have to sign the document physically (not with a digital signature). Why the requirement for being written? This ensures that your wishes are clearly documented and reduces the potential for fraud or misinterpretation.

Another requirement of Cal. Prob. Code § 6110 for a valid will in California is to ensure the Testator (the maker of the will) signs it and also has two witnesses of their choosing sign it. The witnesses should not be someone who is receiving a benefit from the will. For example, if the will says, “All my money to John.” John should not be one of the witnesses, it should be someone else impartial to the will, as there could be questions of fraud down the road if John were the only one to witness the signing and he is also the one receiving all of the money. 

According to California law, the witnesses must also be present at the testator’s signing–the witnesses watch the Testator sign and vice versa. They are all present at the same time and actually “witness” the Testator’s signature. 

The Testator must be of sound mind and legal age (18+)

The will-maker (“Testator”) must be of sound mind and at least 18 years old. This might seem obvious, but it is a requirement for a valid will. Why? Because creating a valid will hinges on the Testator’s ability to understand their actions and make informed decisions.

Imagine someone experiencing a mental health crisis or being unduly influenced by another person. In these situations, their capacity to create a will that truly reflects their wishes is compromised. This requirement of a “sound mind” protects vulnerable individuals and ensures that the will genuinely represents their intentions.

What else to know about witness requirements in California

In California, their presence and signatures are crucial for ensuring your document stands up in court. Here’s the key:

4. Witnesses are competent adults: Witnesses should also be competent adults (18+) who are of sound mind. 

For example, picture John, who’s leaving everything to his wife, Mary. He wisely asks his neighbor, Mike, and his coworker, Adam, to witness his will. Neither Mike nor Adam are beneficiaries; both are of sound minds and competent adults, making them perfect candidates. They all gather together, and each person signs in the presence of the other two, creating a legally sound document.

No–you are only required to sign it and have it witnessed (by 2 disinterested people). It’s not a legal requirement to have it notarized, though it can be beneficial! Getting your will notarized with two disinterested witnesses can help speed through probate because the will may include a self-proving affidavit, however, ask your notary about this to ensure proper language. People sometimes want to get it notarized because it is effectively being “witnessed” by a professional notary public who leaves their stamp and identification number on the document.

Don’t let the legal requirements intimidate you! Creating a valid will in California is a simple and powerful way to protect your legacy and provide for your loved ones. By following these key requirements—putting it in writing, signing it, and having it witnessed by two competent adults—you’re well on your way to a legally sound last will and testament. While a handwritten (holographic) will without witnesses offers a simpler option, remember that a formally witnessed will provides greater clarity and minimizes potential challenges during probate.