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Can A Beneficiary Witness A Will in California?

SHORT ANSWER

The short answer is no. California Probate Code Section 6112 says that the signature as a witness who is also a beneficiary is not valid, but it does not invalidate the Will itself as long as there are enough remaining valid witness signatures. A Will requires two witnesses. Many practitioners have three witnesses sign just in case one of them turns out to be invalid. Hence if there are two remaining witnesses’ signatures that are valid then the Will stands.

FULL ANSWER

Specifically, the California probate code defines “interested” and “disinterested” witnesses depending on whether the witnesses receives a gift in the Will. It creates a presumption that the interested witnesses wrongfully procured the signature of the testator by duress, menace, fraud, or undue influence. But the presumption may be overcome and a court probably would find that to be the case in most circumstances. For example, a Will is signed by a daughter and an uncle. While the uncle receives nothing in the Will, thereby making him a “disinterested witness”, the daughter receives 50% of the estate making her an “interested witness”. The other 50% of the estate goes to the son, who is the only other child of the testator. Since it is almost always the case that a parent leaves all their estate assets to their children in equal proportions, the presumption would be easily overcome. Absent actual evidence that the daughter took wrongful actions to get the parent to make the Will there is no reason to believe the Will was made under shady circumstances, especially if it was signed in front of any attorney or doctor that can attest the testator seemed to be of sound mind and not under any duress.

MAKE SURE TO GET A “REVOCABLE TRUST” NOT JUST A WILL

Since as Will always requires filing in probate court, make sure you are doing a Revocable Trust in addition to the Will to avoid  court process. A Revocable Trust is a legal contract, similar to a life insurance policy. It will transfer your assets to your beneficiaries automatically. Legal practitioners draft a Will usually as part of a Will and Trust Package but only as a back up in case the Trust Agreement was lost or made invalid for some reason or in case an asset like real estate was never transferred to the Trust. Just make sure not to only do a Will. Some people erroneously think that is all that is necessary to smoothly leave assets to your heirs.

Call Tony Bayard de Volo, Esq. at 408-288-5431 for a free consultation. www.vololaw.com - San Jose, California.

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