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Probate, Wills, Trusts and Estate Planning

Q.  If I use an online or do-it yourself will kit to make my will does it have to be notarized to be legal?

A. Criminal law and estate planning/ probate law are two areas of law that I strongly advise people to hire a lawyer for.

One of the problems that arisen as a result of the internet and modern technology is the proliferation of will kits that are completed on a computer. Typically these kits involve a user entering various options into a program, printing a computer printed will, and then signing and having them notarized pursuant to the instructions with the kit. The problem with these types of wills is that they are not legally valid in California.

To be considered a legally valid will that can survive the probate process, the document must either be classified as a holographic will or it must be properly attested. A holographic will is a will where all of the material terms and the signature are in the handwriting of the testator – the person making the will. (Prob. Code, § 6111.)

Obviously, a document printed by a computer printer and signed by the testator does not qualify as a holographic will, because the material terms of the will are not in the testator's handwriting. But with only the signature of the testator, and a notarization, the will does not comply with California's formal will attestation statute either.

Traditionally, a formally attested will had to be witnessed being signed by at least two (2) people each of whom were present at the same time, witnessed either the testator sign the will or the testator's acknowledgement of the signature. (Prob. Code, § 6110, subd. (c).)

In 2008, the California Legislature added another subsection to Probate Code section 6110, to cover situations of harmless error. "If a will was not executed in compliance with paragraph (1), the will shall be treated as if it was executed in compliance with that paragraph if the proponent of the will establishes by clear and convincing evidence that, at the time the testator signed the will, the testator intended the will to constitute the testator's will." (Prob. Code, § 6110, subd. (c)(2).)

Personally, I would never rely on this new addition to the statute to save what is otherwise an improperly attested will. It will save money and headaches for your loved ones down the road if you do it right the first time.

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