While a Will may not be enough in California, many people do still rely on distributing their property at death through a Will. In a prior blog, we mentioned when a person dies without a Trust, and owns in excess of $20,000 in real property or $100,000 of collective personal and real property, the estate must be probated. CA Probate Code 13100 has recently been amended providing that estates of less than $150,000, generally, do not need to be probated.
Though this new change in law may be beneficial to those relying on the use of a Will, it should not be an excuse to not revisit your Will for compliance with current California law. Recently, we assisted a client in petitioning the court for letters of testamentary so that he could represent his mother’s estate. Today, Attested Wills are signed by two disinterested witnesses, who attest that the Will was signed in their joint presence, at the request of the Testator, and declaring that the Testator was of sound mind. If the witnesses signed under penalty of perjury, the Will is self-proving and the Will can be admitted to probate without the testimony of any subscribing witness.
Unfortunately, signing under penalty of perjury was not the law in 1979. The court today requires that all Wills admitted for probate be signed under penalty of perjury. However, if not, the attorney or the person petitioning to be the legal representative must have a Proof of Subscribing Witness signed. This entails contacting one of the witnesses and asking them to sign, now under penalty of perjury, that they did in fact witness the Testator’s signing of the Will. This may not only be a cumbersome request to locate witnesses from three decades ago but may be an impossible feat. The witnesses may not be locatable or may have passed. After completing a diligent search, if no witnesses are ascertained, an Affidavit can be submitted to court stating that no witnesses can be found and that the Will should still be admitted to probate.
While it is possible to have an older Will probated, which is not in compliance with current law, additional time and expense could be saved if a Will, which is not signed under penalty of perjury, was updated and re-executed.