Detailed Answer
Under California law, a valid will must generally be signed by the testator and witnessed by two individuals (Prob. Code § 6110). If your document lacks witnesses or notarization, you still may admit it through one of two routes:
1. Holographic Will (Probate Code § 6020)
A holographic will is handwritten and signed by the testator. It must be entirely in the testator’s handwriting and signed at the end. If your document meets these criteria, you can file a petition to admit a holographic will. See Probate Code § 6020.
2. Substantial Compliance Doctrine (Probate Code § 6110.5)
If the document fails formal requirements, California courts may still admit it if you present clear and convincing evidence that the decedent intended it as a will. Evidence can include testimony, drafts, or correspondence. See Probate Code § 6110.5.
Probate Steps
- Gather Evidence: Collect the original document, any drafts, dated notes, and witness affidavits about the testator’s intent.
- Prepare Petition: File Form DE-111 (Petition for Probate) with the county superior court where the decedent resided.
- Notice to Heirs and Beneficiaries: Serve all statutory notices after filing the petition.
- Hearing: Attend the court hearing. Present the document, evidence of handwriting or intent, and any witness declarations.
- Letters Testamentary: If the court admits the document, it issues letters testamentary to appoint an executor.
Note: If the court rejects the document, the estate may pass under intestate succession.
Time Limits
You must petition for probate within four years of the decedent’s death. After that, the court will not grant probate (Prob. Code § 8000). See Probate Code § 8000.
Disclaimer
This article provides general information only. It does not constitute legal advice. Consult a qualified attorney to discuss the specifics of your situation.
Helpful Hints
- Act promptly. Collect testimony and documents before memories fade.
- Compare handwriting samples. A forensic document examiner can help.
- File required notices on time to avoid delays.
- If heirs dispute the will, consider mediation or settlement conferences.
- Consult a probate attorney for complex estates or contested probates.