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How do I "prove a will"? (for California)
There are basically three types of wills: Attested Wills, Holographic Wills, and Statutory Wills.
A Will is "proved" and will be admitted to probate if it has been prepared and executed correctly under California law by an adult who at the time of signing had testamentary capacity and was not acting under undue influence.
General information about the different types of wills is as follows:
- Attested Wills (also known as Witnessed Wills):
Attested Wills are usually prepared by an attorney, in typewritten form, and are signed in front of two (or three) disinterested witnesses who are not receiving any gifts under the Will. An attested Will is self-proving if the attestation clause signed by the witnesses contains a statement that the witnesses are signing under penalty of perjury.
A self-proving Will can be admitted to probate without the testimony of any of the subscribing witnesses.
A pour-over Will is an attested Will (and may also be self-proving) that is prepared in connection with a revocable trust and gives all of the decedent's property that is subject to probate to the trustee of the revocable trust.
- Holographic Wills:
Holographic Wills are handwritten wills prepared by a testator in his or her own handwriting. Holographic wills do not have to be signed in front of witnesses or notarized. A holographic Will may be admitted to probate if the testator's handwriting can be proved by the testimony of at least one witness who was personally acquainted with the testator and has personal knowledge of the testator's handwriting.
- Statutory Wills:
Statutory Wills are fill-in-the-blank, pre-printed wills whose form and content is specifically prescribed under California law. A statutory Will is a form of attested Will that must be signed in front of (at least) two witnesses. It is self-proving because the required declaration under penalty of perjury is included in the printed form.
However, the testator must use great care to follow carefully the instructions for choosing an executor and deciding how property is to be distributed in order to complete the Will properly.