The most common type of will is a witnessed will. Usually they are typewritten, but they can also be handwritten. They also can be in any language, but must be translated into English to be admitted to the probate court.
To be valid under Probate Code §6110, a witnessed will must be in writing and signed by either:
- The person that made the will (called the testator),
- In the testator’s name by some other person in the testator’s presence and by the testator’s direction, or
- By a conservator pursuant to a court order to make a will under Probate Code §2580.
At least two witnesses must sign the will while the testator is still living. (Probate Code §6110(c)(1).) And, the witnesses, both being present at the same time, must witness either the signing of the will, or the testator’s acknowledgement of the signature or of the will. Lastly, the witnesses must understand that the document that they are signing is the testator’s will.
The witnesses must be competent and disinterested. (Probate Code §6112.) There is no requirement that the witness be 18 years or older but use of a minor as a witness should be avoided. A will is not invalid because it is signed by an interested witness, who is someone that receives a gift under the will. However, a presumption is created that the interested witness received any undue benefit by duress, menace, fraud or undue influence and such excess or undue benefit is void. (Probate Code §6112(c).)
Two witnesses are not always required to have a valid will. If the will is not properly witnessed, the will may still be admitted to probate if it can be established by clear and convincing evidence that at the time the testator signed the will, he or she intended the will to constitute his or her will. (Probate Code §6110(c) and (d).) But if there are at least two other disinterested witnesses, then this presumption does not arise.
It is a common misconception that a notary acknowledgement is a requirement of a will. However, wills are not required to be notorized. A notary acknowledgement has no effect on a will, except that the notary’s signature can constitute a valid witness attestation so long as at least one more witness signs the will.
A witnessed will, like all wills, must demonstrate a testamentary intent, meaning that the person creating the will intended to dispose of his or her property after death.
It’s important to note that a will is not required to bring a probate action to administer a decedent’s estate. When someone dies without a will, the California laws of intestate succession determine who will inherit the assets.
