The existence of a will is crucial in determining the way probate is handled in California. Many people feel the need to talk about and write down how they want their assets distributed after they have left this world. However, discussing your intentions and writing them down on a piece of paper do not constitute a will that can be accepted under probate law. A will must be proven or be self-proving in order to be valid.
How Do You Prove a Will?
To prove a will, it must be shown that:
Either the decedent signed it in front of witnesses, declaring that it was his or her Will, or
The witnesses understood that it was his or her Will.
This is accomplished by having the witnesses sign a formal declaration to this effect, which is attached to the will and stamped by the court's clerk.
If the decedent made a signed and handwritten will, someone who knows the decedent's handwriting will make and sign a declaration to confirm that the will was written by the decedent. Another proven will could be a commercially printed will-form containing a statement of testamentary intent with the decedent's own handwriting and signature. Such documents are called holographic wills.
Some documents are accepted as self-proving, which means that the court does not require a written confirmation by someone who knows the decedent's handwriting. If the will contains a self-proving clause and is signed by the witnesses under penalty of perjury declaring that the document was executed according to California law, then the document may be accepted as a self-proving will. If someone questions the validity of the will, the court may request additional evidence.
Talk to San Diego probate attorney Scott Grossman about your situation and any questions you might have. Call us at (951) 683-3704 or (888) 443-6590 for your FREE 30-minute telephone consultation.