This introductory guide briefly discusses the law that surrounds wills and testaments in the state of California.
When it comes to laws concerning the signing, writing, and enforcement of wills, there is a general consensus between the majority of the United States. As such, California is no different, sharing the majority of its wills laws with the rest of the country. In California, legislation requires the testator (the writer and owner of the will) to be 18 years old or over. They must also be of sound mind when they create the document.
Different Types of Wills
Generally, it is proper to type a will. However, there are exceptions to the rule:
A holographic document is one the author writes by hand. In terms of a will, a holographic will is entirely handwritten, dated and signed by the owner of the will. This usually requires two disinterested witnesses to validate the handwriting of the author. This type of will is only legal in about half of the states, including California.
Unlike some states, oral wills are illegitimate in California. A “nuncupative” or spoken will as it is sometimes known is only recognized by a few states, and only in rare cases. A valid oral will is usually an allowance the state makes for people in extreme circumstances. For example, the testator may have made the will when their death was imminent (a police officer fatally harmed in service). There must be at least two witnesses present to validate the will. Due to the nature of this will, it is rare that a court will validate it.
Video wills come under the same category as oral wills. As a result, they are also illegitimate in the state of California. However, video wills are permissible in states that allow oral wills as long as the requirements of the oral will are met. Video wills are particularly good for demonstrating that the testator was of sound mind when they were creating their will.
Soundness of Mind
Along with age restrictions, the most pertinent feature of a will is that the testator is of sound mind when they write it. The soundness of mind terminology generally refers to someone who is aware of their actions and the related consequences of those actions.
(a) An individual is not mentally competent to make a Will if at the time of making the Will either of the following is true:
(1) The individual does not have sufficient mental capacity to be able to (A) understand the nature of the testamentary act, (B) understand and recollect the nature and situation of the individual’s property, or (C) remember and understand the individual’s relations to living descendants, spouse, and parents, and those whose interests are affected by the will.
(2) The individual suffers from a mental disorder with symptoms including delusions or hallucinations, which delusions or hallucinations result in the individual’s devising property in a way which, except for the existence of the delusions or hallucinations, the individual would not have done.
(Amended by Stats. 1995, Ch. 730, Sec. 8. Effective January 1, 1996.)
Burden of Proof
Anyone who challenges the legitimacy of a will on the grounds that the testator was lacking mental soundness has the burden of proving this in court. Most probate courts start out by presuming the testator was in sound mind when they wrote the will.
Marriage and Divorce
California is a community property state, meaning that a testator’s death will result in their spouse receiving half of all the marital property.
If a testator is divorced after they make a will, all provisions naming their spouse are revoked and any bequests made to them are void.
In California, the creation of a new will voids the old one. The testator can also void a will by destroying it, or by choosing someone to destroy it on their behalf.
Any will that cannot be found in the wake of the testator’s passing is considered to be destroyed and therefore revoked. This is assuming the testator was of sound mind at the point of death.
In the case of someone dying without a will, a probate court will settle the will. In a situation like this, the court will usually divide the estate out equally between the deceased’s heirs.