California Wills: Answers to Frequently Asked Questions

Creating a will that will ensure your wishes are honored can be a complicated undertaking - and creating it in California means knowing not only what the law requires, but how it is interpreted. We asked Vincent J. Russo, a California attorney whose practice consists of estate planning and probate litigation to provide answers to the following frequently asked questions:

Question: Does California provide for a self proving will?

Answer: Quite frequently you see self proving affidavits, witnesses as well as the testator sign affidavits in addition to the witness. The signatures they put on the initial document indicating that they know what this is, that it was explained to them, they are disinterested, they witnessed the whole thing, that self proving affidavit can later be used in court if there are some issues in regard to the validity of the will and its evidence that can be introduced.

For example, let's say I prepare a will today, but I don't die for 30-years. My two witnesses are going to be hard to find, if they are even still alive at that point. The court most likely would accept the self proving affidavits as evidence that the witnesses witnessed the execution of the will.

Question: Do the witnesses' signatures in a will need to be notarized in California?

Answer: Not on a will, but you frequently see that on a trust.

Question: How can you change a will in California?

Answer: There are a couple of ways that you can change a will. The first is by revoking all prior wills and codicils. Under those circumstances, the new will would obviously take precedent. However, it can get complicated. Let's say I execute a new will, but I have an existing will. Before I execute the new will, there are a couple of ways that you can revoke the existing will. You can rip it up, and you have to rip up the words, not just rip up the side of the paper, you can burn it or you can make an affirmative act to revoke it.

One of those affirmatives acts that you see quite frequently is somebody just preparing a new will. I have prepared a new will so I am revoking all prior wills and consults by the execution of this new will. However, it can get murky as you get into it. For example, if later on it is determined that the new will that you executed was not valid, then do we bring back the old will?

Question: How do you find a lost will in California?

Answer: That can be difficult. It's important to determine whether there's a copy of the lost will because you would have to probate the original will. The presumption is that if we can't find the original will, then it might have been revoked.

So if that's the case, then we are scrambling, looking for a copy and any reason as to why that will should not be valid. Let's assume there's no copy, it's just lost. Most likely what's going to happen is the property will probably pass intestate, meaning it will go equally to whomever the natural objects of the bounty are, the natural heirs or lineal descendants.

Estate planning, which includes wills, trusts, health care directives and probate issues, is a complicated area of the law. If you would like to speak with an experienced California wills attorney about your situation, please click here.