What the rule says
A valid California attested will requires three elements under California Probate Code § 6110:
1. A writing. The will must be in writing — typed or printed. 2. The testator's signature. The testator must sign at the end of the will. If physically unable to sign, the testator may direct another person to sign on their behalf in the testator's presence. 3. Two attesting witnesses. Two witnesses must be present at the same time when the testator either signs the will or acknowledges that the signature is the testator's. Both witnesses must understand that the document is intended to be the testator's will, and both must sign the will in the testator's presence.
If any element is missing or improperly executed, the document does not qualify as a valid attested will under § 6110. The document may still be admissible as a holographic will if it qualifies under § 6111, but otherwise the testator dies intestate.
Compliance details that frequently cause problems
The witness requirements are exact, and several scenarios commonly cause issues:
- Witnesses must be present at the same time. If the testator signs in front of one witness, then later asks a second witness to sign separately, the will may not be validly executed under § 6110. The simultaneous-presence rule ensures both witnesses observe the same signing or acknowledgment event. - Acknowledgment is an alternative to signing in front of witnesses. The testator does not have to sign in front of the witnesses if the testator signed earlier and then acknowledges the signature to both witnesses in their simultaneous presence. The acknowledgment must occur with both witnesses present. - Witnesses must know it is a will. The witnesses do not have to read the will or know its terms, but they must understand that the document they are signing is the testator's will. - Witnesses sign in the testator's presence. Each witness must sign while the testator is present, although the witnesses do not necessarily have to sign in each other's presence (the simultaneous-presence requirement applies to the testator's signing or acknowledgment, not to the witnesses' signing). - Material added after signing. Provisions added below the signature may not be effective unless the will is re-executed.
A will that fails on any of these points may be challenged at probate. If the challenge succeeds, the will is rejected and the estate passes by intestacy.
What you can do about it
For witnessed wills, the cleanest practice is:
- Sign the will in front of both witnesses at the same time. Avoid the separate-signing problem entirely. - Have both witnesses sign in your presence. They do not have to sign in each other's presence, but you should be present. - Use disinterested witnesses. Witnesses who are also beneficiaries face the interested-witness rule under California Probate Code § 6112, which can reduce or eliminate the witness's gift. - Consider a self-proved will. Under California Probate Code § 8220, a will accompanied by an affidavit of attesting witnesses signed before a notary can be admitted to probate without live witness testimony. This is especially useful when witnesses may be unavailable years later. - Sign at the end. The signature should be at the physical end of the document, after all dispositive provisions.
A holographic will is a separate alternative under § 6111 — entirely in the testator's handwriting and signed by the testator, with no witness requirement.
Who this affects most
The witness requirements are most consequential for:
- Anyone executing a typed or printed will in California - Witnesses asked to sign outside the testator's immediate presence or at separate times - Households where a beneficiary served as a witness — the interested-witness rule may eliminate the gift - Estates where the testator dies many years after execution and witnesses are difficult to locate
California's witness rules are not unusual by national standards but are exact. A will that does not meet them is at meaningful risk of rejection at probate.