11th Feb 2013
When you pass away, one of your fondest wishes is to leave your property to the people you love and care for. And one way to ensure that is to prepare a Will. But having a Will does not guarantee that your wishes after death will be followed. After you die, the court will still have to establish if your will is valid. Only after the court has declared a Will valid can it be used as the basis for the distribution of the estate. This is known as proving the Will.
Validating a will is essentially determining if the testator (person preparing the Will) has executed it correctly under California law. It must be established that the testator’s mental faculties are clear and that he was not coerced to sign his document.
There are basically three types of wills: Attested Wills, Holographic Wills, and Statutory Wills.
Attested Wills. These are usually prepared by an attorney, typed and are signed in front of two (or three) disinterested witnesses who are not beneficiaries of the testator. It is very easy to prove an Attested Will: If the document contains an attestation clause signed by the witnesses with a statement that the witnesses signed under penalty of perjury. This is what is known as self-proving Will. (You will even make it easier for yourself when you get the assistance of a probate attorney from Orange County when executing your Will.)
Holographic Wills. These are wills prepared by a testator in his own penmanship. Holographic wills need not be signed in front of witnesses or notarized. A holographic Will may be admitted to probate if the testator’s handwriting can be proved by the testimony of at least one witness who knows the testator personally and is familiar with the testator’s handwriting.
With a holographic Will, be sure that everything in it is clear and legible and there are no typewritten marks on it. Any typewritten mark on the holographic Will would invalidate it as such. When preparing a Holographic Will see a probate attorney from Orange County who can point to you the nuances of a Holographic Will.
Statutory Wills. Statutory Wills are ready-made, pro forma wills whose form and content follow the stringent prescriptions of California statutes. These can usually be downloaded from the Internet. A statutory Will is classified as an Attested Will that must be signed in front of a minimum of two witnesses. Since the form adheres strictly to California law, the Statutory Will is self-proving because the requisite declaration under penalty of perjury can be seen in the downloaded form.
However, the testator must still be careful in nominating his executor and deciding how to allocate his estate to his designated beneficiaries. A Statutory Will can easily be proven to be admissible since it follows California laws. What you have to watch out are the unintended consequences of your decisions. To ensure that your Will follows what you really desire to happen, seek the advice of a probate lawyer.