One of the most common questions in estate planning is: “Do I need a lawyer to make a will in California?”
The quick answer is no. California law does not require an attorney for a will to be legally valid.
But a valid will may not always be effective.
So, the qualified answer to the question of whether you need a lawyer to make a will in California is, “No, you don’t need a lawyer to make a will. But it is highly recommended that you consult with one to, at the very least, ensure that your will meets all legal requirements to be considered valid, and that the substance of your will is structured to minimize liabilities and ensure that your testamentary intent is clear and unambiguous.
Below we take a look at the two types of wills you can DIY in California.
The Holographic Will
Holographic wills are governed by Probate Code §6111.
If you want to create a will quickly and without much ado, this is probably the best option for you. Holographic wills don’t need much ceremony – you don’t need to have it notarized and you don’t need witnesses. All you need is a paper and pen.
The primary distinguishing characteristic of a holographic will is that it must be entirely handwritten by the testator. You can’t type it even halfway, and you can’t ask someone else to write it for you. When the time comes to validate a holographic will, one of the primary things that will be checked is whether the handwriting was the testator’s own handwriting. Of course, the signature will also need to be verified as to whether it was the testator’s signature.
A holographic will need not be dated. But it is good practice to indicate the date when it was executed to prevent conflict with other versions of a will. Most people who write holographic wills may update their will from time to time. If all versions are undated, and material provisions conflict significantly, the courts may treat the will as partially invalid, as to that conflicting provision.
The California Statutory Will
An alternative to a holographic will, albeit with a more structured approach, is the Statutory Will under Probate Code Section §6240.
Probate Code Section §6240 provides general guidelines for a statutory will, the do’s and don’ts, and works with a pre-made template that you can simply fill up according to the instructions.
A statutory will, like a holographic will, does not require the assistance of a lawyer to be valid. Unlike a holographic will, however, a statutory will requires at least two witnesses. These witnesses will also need to sign the will in their capacity as witnesses, and attest to the fact that the testator was of sound mind and was not acting under duress at the time of execution of the statutory will.
The statutory will, however, is designed for a relative simple and uncomplicated estate. If you try your hand at filling out the statutory will template and find that some don’t really apply to you, or that there are additional provisions you would like to insert, it is probably best that you explore other options other than the statutory will.
The statutory will utilizes boilerplate language approved by legislation – so crossing out provisions, making additions, or amending the template might actually cause ambiguity in its interpretation – the very opposite of what the statutory will was intended to avoid.
The Hidden Challenges to a DIY Will
If you tried your hand at either a holographic will or a statutory will and feel satisfied that they meet your personal needs, you might feel it proper to forego the assistance of an attorney.
But there are hidden risks to doing so.
If the language you used in your will is unclear, or subject to interpretation, a probate court might need to hear evidence to determine what your true testamentary intent is. Language that you might think is unclear might not actually be so, which might lead to conflict among heirs and successors, and a dispute that would need court intervention to resolve.
The simple act of proving your will might also meet with challenges early on during the probate process. Some family members might dispute the validity or authenticity of a holographic will (since nobody really witnessed its execution), leading to potential will contests.
More importantly, the substance of your will might need review. It may happen that you indicated your wishes in your will with respect to a business you are leaving behind. That business decision, however, in hindsight, might not really the best decision to make.
If your personal representative, in administering your estate, acts upon your wishes, but it results in severe loss or damage to the business and your estate overall, the personal representative might be deemed liable for the said loss. After all, as a personal representative to the estate, one or their obligations is to ensure that your testamentary dispositions are carried out. On the other hand, as a fiduciary, their primary responsibility is the care and preservation of the probate assets, which may include your business assets.
Even if you wished to write and execute a will without the assistance of an estate planning lawyer, consulting with one is still a good idea. You would want to ensure that your will, in whatever form, is ultimately admitted to probate. But more importantly, you would need to ensure that the material dispositions in your will are clear and not subject to interpretation, that they meet prevailing legal requirements, and that they are truly the best way to secure, preserve, and transfer your assets to your heirs and successors.
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If you have a will or are currently considering preparing your last will and testament, it may be a good idea to schedule a “Will Integrity Audit” with an experienced estate planning counsel. This is an evaluation or a review of your existing document to ensure that your will holds up when subjected to challenge.