Are Handwritten Wills Legal In California?

Is a handwritten will legal?

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The Validity of Holographic Wills in California

In California, a handwritten will is also known as a “holographic” will. Under California Probate Code Section 6111, a handwritten will may be valid in California if the will’s signature and “material provisions” are in the handwriting of the person making the will. Unlike other typed wills, which require witnesses to the signature, a handwritten will does not necessarily need to be witnessed.

Is a handwritten will legal

Holographic Wills Are Only Valid In California In 4 Situations

But before making a handwritten will, you should know that there are other general requirements for making a will, including but not limited to the condition that the person must be over age 18 and have “mental capacity.” It is also crucial that the person understands the “material provisions” of their will to be written in the person’s handwriting as required under the Probate Code.

While different ideas may come to mind when you hear the term “holographic will,” it simply refers to a handwritten will instead of being typed out. They are most commonly drafted in situations where individuals know that they’re nearing death, and they’re not surrounded by anyone else to help type or witness the document being written. Such wills are valid in California under exceptional circumstances.

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When making a handwritten will, people often wonder: Does the will need to be notarized? What if there is no date on the will? What if I tell someone to write the will for me to sign it? It is crucial that you understand the answers to these questions before preparing a handwritten will for yourself. Unlike typewritten wills, California state law doesn’t require a holographic will to be dated to be considered valid. Including a date on it can help a judge determine which one is the more recent of two documents, especially if there’s more than one will that is located.

You should also remember that a will alone may not avoid the probate court process after death, especially if you own a home. Although it’s not necessary for you to have two witnesses to draft a holographic will, it can be helpful to have them. If the will happens to be contested, these individuals can testify that you wrote this document and were of sound mind when you drafted it.

Two of the most common reasons holographic wills are contested is that no one can guarantee that the testator was of sound mind and not under duress when drafting it. Suppose you believe that your loved one was under undue influence when drafting their will. In that case, a Lafayette general estate litigation attorney can provide you with a thorough, informed analysis of your legal options in your case.

NCGS Section 31-3.4 recognizes holographic wills and provides as follows:

(a) A holographic will is a will

(1)  Written entirely in the handwriting of the testator, but when all the words appearing on a paper in the handwriting of the testator are sufficient to constitute a valid holographic will, the fact that other words or printed matter appear thereon not in the handwriting of the testator, and not affecting the meaning of the words in such handwriting, shall not affect the validity of the will, and

(2)  Subscribed by the testator, or with the testator’s name written in or on the will in the testator’s handwriting, and

(3) Found after the testator’s death among the testator’s valuable papers or effects, or in a safe-deposit box or another safe place where it was deposited by the testator or under the testator’s authority, or in the possession or custody of some person with whom, or some firm or corporation with which, it was deposited by the testator or under the testator’s authority for safekeeping.

(b) No attesting witness to a holographic will is required.

If you have questions about making a will, determining if a will is valid, avoiding probate, or distributing assets and inheritance, contact our office for a consultation to discuss these crucial issues.