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- California law controls how a will is executed
- Holographic wills use a different California rule
- Capacity is measured when the will is made
- A will can be revoked
- A will controls probate property, not every transfer
- What happens to the document after death
- The document, execution history, and later events work together
- Sources
Key Facts
- California state level: A formal California will generally must be written, signed, and witnessed by two people under Probate Code section 6110.
- California state level: California recognizes a holographic will without witnesses when its signature and material provisions are in the testator’s handwriting.
- California state level: Testamentary capacity is assessed at the time the will is made under the standards in Probate Code section 6100.5.
- California state level: A will can be revoked by a later inconsistent or expressly revoking will, or by specified destructive acts performed with revocatory intent.
A last will and testament is the document commonly meant by the word “will.” California places wills within Division 6 of its Probate Code and sets statutory rules for their capacity, execution, and revocation. The document must satisfy California law before a court can treat it as a valid will.
California law controls how a will is executed
California Probate Code section 6110 generally requires a will to be in writing. It must be signed by the testator, by another person in the testator’s presence and at the testator’s direction, or by a conservator acting under an authorized court order.
The ordinary witness route requires at least two people to sign during the testator’s lifetime. Both witnesses must be present at the same time for the signing or the testator’s acknowledgment, and each must understand that the instrument is the testator’s will.
Section 6110 also contains a limited proof rule. A will that did not comply with the ordinary witnessing paragraph is treated as compliant if its proponent proves by clear and convincing evidence that the testator intended the signed document to be the testator’s will.
Holographic wills use a different California rule
Probate Code section 6111 recognizes a holographic will whether or not it was witnessed when the signature and material provisions are in the testator’s handwriting. Testamentary intent may appear in the testator’s handwriting or on a commercially printed form.
An omitted date can matter. When the omission creates doubt about which inconsistent will controls, the undated holographic will is invalid to the extent of the inconsistency unless its later execution is established. The statute also addresses an undated will when the testator lacked capacity during part of the possible execution period.
Capacity is measured when the will is made
Probate Code section 6100.5 asks whether the individual could understand the nature of making a will, understand and recollect the nature and situation of the individual’s property, and remember and understand specified family and affected relationships. It also addresses a mental-health disorder involving delusions or hallucinations that caused a property disposition the person otherwise would not have made.
The statute focuses on the individual’s condition at the time of making the will. It does not make a diagnosis, age, or later incapacity an automatic substitute for the statutory inquiry.
A will can be revoked
Under Probate Code section 6120, a later will can revoke an earlier will expressly or through inconsistency. Revocation can also occur when the will is burned, torn, canceled, obliterated, or destroyed with intent to revoke by the testator, or by another person acting in the testator’s presence and at the testator’s direction.
Intent and the statutory act both matter for revocation by physical destruction.
A will controls probate property, not every transfer
A valid will operates within the probate system. If property is not effectively disposed of by the will, Probate Code section 6400 sends that property to heirs under California intestate succession.
What happens to the document after death
California Probate Code section 8200 gives the will custodian a specific delivery duty. Unless a probate petition was filed earlier, the custodian must deliver the will to the proper superior-court clerk within 30 days after learning of the testator’s death.
The custodian must also deliver a copy to the person named as executor when that person’s whereabouts are known. If the executor’s whereabouts are unknown, the statute instead identifies a known beneficiary as the recipient of the copy.
The document, execution history, and later events work together
The phrase “last will and testament” does not by itself prove validity or identify which document controls. California’s result depends on the statutory form, testamentary capacity, evidence of intent, later wills, revocatory acts, and relevant post-execution events.
