A last will and testament can ensure your wishes are respected when you die. But if your will isn’t legally valid, those wishes might not actually be carried out, and instead the laws of “intestate succession” would apply, meaning that the state decides who gets your stuff, and it’s very likely not to be who you would choose.
If you’ve created a will online, we congratulate you for doing SOMETHING, but I strongly recommend that you have it reviewed and make sure it does what you want and is actually legally valid. I’ve seen it far too many times: someone THINKS they’ve created a will, because they did something, but the SOMETHING was the WRONG THING, and their family is left to deal with the fallout, confusion and complications that result.
The validity of a will depends on where you live when you die, as last will and testament laws vary from state to state. California requires wills to meet the following criteria in order to be legally binding:
The Essential Requirements
You must be at least 18 years old or an emancipated minor to create a legally valid will.
- You must be of sound mind and capable of understanding your intentions for your estate, who you want to be a beneficiary, and your relationship with those people when you create your will.
- You must sign your will or direct someone else to sign it if you are physically incapable of doing so.
- There must be at least two witnesses—who are not beneficiaries— present at the signing.
Handwritten Wills
You may write a holographic will, which means a will that is written completely in your own hand, with no other printed material on the page. In that case, there are no witnesses required, and, in fact, having a witness would make the will invalid because there must be no other writing other than your hand on the page for a holographic will to be valid.
When a Will Isn’t Valid
If your will does not adhere to the legal requirements, the court will declare it invalid. In this case, your estate would pass under California’s intestacy laws, which means your assets would go to your closest living relatives, as determined by the law. And that may or may not be who you would want to receive your assets.
Is a Will All You Need?
A will is a baseline foundation for any estate plan, but it might not be enough to protect your family. A will does not keep your assets out of court, and it does not operate in the event of your incapacity. It also does not ensure your minor children will only ever be cared for by whom you choose. And a will alone cannot ensure your loved ones receive your assets protected from unnecessary conflict or creditors.
The best way to ensure your will is legally valid is by consulting with an experienced estate planning attorney to confirm your will follows California’s laws and to evaluate your estate plan to ensure it will protect your wishes and provide for your family according to those wishes in the event of your incapacity, or when you die.
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