I am often asked by probate clients and estate planning clients why two individuals have to watch the signing of a will. I have had clients ask me if a notary acknowledgement alone is sufficient. The answer is that wills executed in California must follow strict guidelines. A notarization alone will not make a will valid. The Probate Code requires specific formalities on how a will is executed, and failure to follow the Probate Code to the letter could cause major delays and problems to executors and family members of the estate.

For example, a person signing a will (the testator) must sign it in the presence of two witnesses who know that the document being signed is a will. The testator must declare to the two witnesses that he or she is signing a will. Failure to follow this procedure exactly to the letter of the law could cause your estate to spend a lot of time and money proving to the court that you actually intended to create a will, and the executor or personal representative of your estate will need to prove these facts by clear and convincing evidence. This evidence standard is one step below the criminal standard of proof beyond a reasonable doubt. Talk about effort in proving the will!

The witnesses should always be disinterested people who will receive no gifts under the will. This is to avoid any presumptions by law that a will was procured by any wrongdoing.

On the will, the witnesses should sign a declaration that comes after the testator signs the will, declaring under penalty of perjury that the testator actually signed the will and that the witnesses witnessed the event. This is called a self-proving affidavit. It is a major cost saver in proving a will if it becomes necessary to probate a will. The will can be admitted as evidence of the testator’s intent without having to find the witnesses to come into court or complete further declarations to get the will admitted into probate. Many wills were executed decades ago, so if a will does not have a self-proving affidavit, the executor and the attorney may have to go on a wild goose chase to find the witnesses who may have moved to different locations or may not be able to be found. Those witnesses may have to give live testimony in open court about the testator signing the will. Even worse, if the will did not have an affidavit and all the witnesses have predeceased the decedent, you will be out of luck and may not be able to probate the will in question and thus the estate might be distributed by intestate succession rules.