Quick Answer: Does a Will Need to Be Notarized in California?
- No notary is required, and a notary is not enough. A typed will needs at least two witnesses (Probate Code 6110).
- The witnesses must be present at the same time and witness the signing, or your acknowledgment of the signature or of the will.
- A handwritten will can be valid without witnesses if the signature and the material provisions are in your own handwriting (Probate Code 6111).
- A beneficiary can witness, but unless at least two other subscribing witnesses are disinterested, the gift to that witness is presumed to have been procured by duress, menace, fraud, or undue influence (Probate Code 6112).
Try the "Is this will valid?" check below.
Most arguments about whether a California will counts come down to how it was signed. The rules are short and they sit in three sections of the Probate Code: 6110 for typed wills, 6111 for handwritten wills, and 6112 for who may be a witness. This article walks through each one, quoting the statute where the exact words matter.
Three Routes Under Probate Code 6110 and 6111
| Route | What it requires | Source |
|---|---|---|
| Witnessed will (usually typed) | In writing, signed by the testator, and signed by at least two witnesses during the testator's lifetime. The witnesses must be present at the same time, witness the signing or the testator's acknowledgment of the signature or of the will, and understand the document is the testator's will. | Probate Code 6110(a) to (c)(1) |
| Handwritten (holographic) will | The signature and the material provisions are in the testator's handwriting. Valid whether or not witnessed. | Probate Code 6111(a) |
| A will that missed the witness rule | Treated as if it was executed in compliance with 6110(c)(1) if the person offering it proves by clear and convincing evidence that, when the testator signed it, the testator intended it to be their will. | Probate Code 6110(c)(2) |
The third route depends on proving the testator's intent. A will signed correctly under the first route does not need that proof.
The Witness Rule for a Typed Will
Probate Code 6110(c)(1) says the will "shall be witnessed by being signed, during the testator's lifetime, by at least two persons each of whom (A) being present at the same time, witnessed either the signing of the will or the testator's acknowledgment of the signature or of the will and (B) understand that the instrument they sign is the testator's will."
In practice that means:
- Two witnesses, together. Both are present at the same time.
- They see the signing, or hear you acknowledge it. If you signed earlier, you can acknowledge the signature or the will in front of both of them.
- They understand it is your will.
- They sign while you are alive.
Who signs the will itself
Under Probate Code 6110(b), the will is signed by the testator; or "[i]n the testator's name by some other person in the testator's presence and by the testator's direction"; or by a conservator under a court order to make a will under Section 2580.
Who Can Be a Witness: the Interested-Witness Rule
Here is Probate Code 6112 in full:
(a) Any person generally competent to be a witness may act as a witness to a will.
(b) A will or any provision thereof is not invalid because the will is signed by an interested witness.
(c) Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue influence. This presumption is a presumption affecting the burden of proof. This presumption does not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity.
(d) If a devise made by the will to an interested witness fails because the presumption established by subdivision (c) applies to the devise and the witness fails to rebut the presumption, the interested witness shall take such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established. Nothing in this subdivision affects the law that applies where it is established that the witness procured a devise by duress, menace, fraud, or undue influence.
Read plainly:
- A witness who receives a gift does not make the will invalid (6112(b)).
- If that witness is not backed by at least two other subscribing witnesses who are disinterested, the gift to that witness is presumed to have been procured by duress, menace, fraud, or undue influence. The statute calls this "a presumption affecting the burden of proof" (6112(c)).
- The presumption does not apply where the gift is made to the witness solely in a fiduciary capacity, for example property left to the witness only as trustee for someone else (6112(c)).
- If the presumption applies and is not rebutted, the witness takes no more than the share they would get if the will were not established (6112(d)).
The simple way to avoid the question
Choose two witnesses who receive nothing under the will. Then 6112(c) never comes into play.
Handwritten Wills
Probate Code 6111(a): "A will that does not comply with Section 6110 is valid as a holographic will, whether or not witnessed, if the signature and the material provisions are in the handwriting of the testator."
- The handwriting has to be the testator's own for the signature and the material provisions, meaning who gets what.
- A printed form can supply the intent statement. Under 6111(c), "Any statement of testamentary intent contained in a holographic will may be set forth either in the testator's own handwriting or as part of a commercially printed form will."
- No date is not automatically fatal, but 6111(b) says it matters in two cases. If the missing date leaves doubt about whether this will or an inconsistent will controls, the handwritten will is invalid to the extent of the inconsistency unless it is shown to have been signed after the other will. And if the testator lacked testamentary capacity at any time during which the will might have been executed, the will is invalid unless it is shown to have been executed when the testator had capacity.
Why a Notary Is Not Enough
Section 6110 does not mention a notary. Its signing rule is the two-witness rule in 6110(c)(1). A will that a notary acknowledged but that two witnesses did not sign as that subsection describes does not meet 6110(c)(1). Within Sections 6110 and 6111, it may still stand as a handwritten will under 6111, if the signature and material provisions are in the testator's handwriting, or under 6110(c)(2), by proof of intent.
Is This Will Valid? A Quick Check
How was the will made?
Choose the one that fits the will you are checking.
Who signed the will?
How was the signing witnessed?
Does the will leave a gift to one of the witnesses?
Are the signature and the material provisions in that person's own handwriting?
Material provisions means the parts that say who gets what. Under 6111(c), the statement that it is the person's will may be part of a commercially printed form will.
Is the handwritten will dated?
General information, not legal advice. For a will you are relying on, have a California attorney review it.
Common Mistakes
- Having a will notarized instead of witnessed. The notary does not replace the two witnesses.
- Witnesses signing at different times, without both being present together.
- Using a beneficiary as one of only two witnesses, which triggers the 6112(c) presumption for that witness's gift.
- A handwritten will with typed gifts. The material provisions must be in the testator's handwriting for 6111(a).
- Several undated handwritten wills, which invites the 6111(b) question of which one controls.
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Frequently Asked Questions
Does a will need to be notarized in California?
Probate Code 6110 does not mention a notary. A typed will must be signed by at least two witnesses who were present at the same time, saw the signing or the testator's acknowledgment, and understood the document was the testator's will. A notary's acknowledgment does not take the place of those two witnesses.
How many witnesses does a California will need?
At least two, under Probate Code 6110(c)(1). They must be present at the same time, witness either the signing of the will or the testator's acknowledgment of the signature or of the will, understand that the document is the testator's will, and sign during the testator's lifetime.
Can a beneficiary be a witness to a California will?
Under Probate Code 6112, any person generally competent to be a witness may act as one, and a will is not invalid because an interested witness signed it. But unless at least two other subscribing witnesses are disinterested, a gift to a witness creates a presumption that the witness procured it by duress, menace, fraud, or undue influence. The presumption does not apply to a gift made solely in a fiduciary capacity. If the presumption applies and is not rebutted, the witness takes no more than the share they would receive if the will were not established.
Is a handwritten will valid in California?
Yes, if it meets Probate Code 6111(a): the signature and the material provisions must be in the testator's own handwriting. A handwritten will that meets that rule is valid whether or not it was witnessed.
Does a handwritten will need a date?
A missing date does not by itself invalidate it. Under Probate Code 6111(b), the date matters in two situations: when it leaves doubt about whether this will or an inconsistent will controls, and when the testator lacked testamentary capacity at any time during which the will might have been executed.
Can someone else sign my will for me?
Probate Code 6110(b) allows a will to be signed in the testator's name by some other person in the testator's presence and by the testator's direction. It also allows signing by a conservator under a court order under Section 2580.
What if my witnesses were not in the room together?
Then the will does not meet Probate Code 6110(c)(1). Under 6110(c)(2), it is still treated as if it was executed in compliance with 6110(c)(1) if the person offering the will proves by clear and convincing evidence that, when the testator signed, the testator intended it to be their will.
How much does an attorney-drafted will cost with Living Trust California?
The Single Will Plan is $150. You sign your will in front of two witnesses you choose.
Disclaimer
Information on this page is for educational purposes and does not constitute legal advice.
For advice on your specific situation, consult a licensed California estate planning attorney.
About: Rozsa Gyene, California Estate Planning Attorney, State Bar #208356, 25+ years experience. Practice focused on California living trusts, probate, and estate administration.
