What makes a will valid in California?
First, let me start by saying that I recently had a “will” in a similar format come into my office. Giving it the benefit of the doubt, I took a deep dive into the law and case law at my disposal, trying to find some loophole to make this a will.
Unfortunately, this is NOT a will under California law. I had to give the bad news to my clients. (Don’t worry, we can still take care of business.)
First, this will has no mention that this is supposed to be a will. Yes, I mention that I want Kendra (my sister) to be my executor, but other than that, the writing reads more like an informational letter. It is not enough to list my (pretend) assets. If I die, it is helpful information for my sister. If I wanted this to be a will, language that showed my intention to make a will would help convince the court I meant for this to be a will.
Secondly, this writing is typed without being witnessed. You can type a will…but it must be witnessed by two people. NOTE: NOT NOTARIZED! The two witnesses cannot be anyone named as executor or anyone who inherits. If one of those people is also a witness, you’ll need a third witness.
A will can be handwritten, but the law says that the “material terms” of the will must in handwritten. A signature and an afterthought in handwriting do not reach the level of “material terms.” There is a lot of opinion in case law about this, but it has been made pretty clear. Numerous cases have been litigated over a typed will with handwritten notes scribbled here and there. It only creates confusion and fighting when there are doubts about what the person actually meant to do. If you choose to do a handwritten will, please make sure it is HAND WRITTEN. After all, you are not trying to create an expensive post death nightmare for your family and friends. You are trying to help them. The best way to help them is to so things correctly!
Can I do a Will by myself?
The answer is YES. You can make your own will. However, you need to make sure it is done correctly under the laws of your state. If you are interested in making your own will, please research the requirements before trying to do it yourself. The internet and local law libraries are a great place to start. In California, the bar association has a free will form, which can be found HERE. Please read the instructions carefully. One mistake could make your will completely invalid.
As an attorney, it is hard to tell families “no,” and that things will not be as easy as they could have been if the person had properly planned. Taking care of business after a person passes is hard. Taking care of business with an unclear plan, or no plan at all, is even harder. Properly executed documents are a must to avoid confusion and results you never intended.
Can I Use a Notary to Prepare my Will? How about a Paralegal?
Please, for the love of probate court, do NOT use a notary to prepare your will. We probate attorneys make a fair amount of money trying to salvage legal work that was done improperly. The role of a notary public is to verify who you are. They are not authorized to do legal work, and contrary to popular belief, completing a will or other documents is not just a “filling in the blanks” job. I’d consider using a paralegal, but only if that paralegal is working under the direction of an attorney. It is actually illegal for a paralegal to do legal work without an attorney overseeing their work. Please see this article for a rundown of practicing law without a license in California. It is a crime, and you can be charged with a misdemeanor, fined, and look at jail time. If a person who is not authorized to do legal work messes up your paperwork, they can be sued and held liable for the losses and costs your family incurred.
All information provided for discussion purposes only. Nothing in this post or on this website, is contouring legal advice. If you have questions, please consult with a reputable attorney near you.