white hospital bed in sunlit room

Is an Oral/Deathbed Will Valid?

The Elder & Disability Law Firm, APC June 13, 2023

It’s not ideal, but sometimes a person coming to the end of life may want to create a new last will and testament to replace an earlier version or even to create their first will. How does California law cover the concept of a deathbed will? Can you tell someone what to do with your estate? Make a recording? Scribble something on paper in your own handwriting?  

California has restrictions regarding what makes for a valid last will and testament, and one of these major restrictions is that it must be in written form, no oral wills are allowed. There are other requirements, such as being of sound mind and having your document witnessed and signed.  

This does not mean that a deathbed or last-minute will won’t be challenged in probate court. A deathbed will may not be the ideal way to go about designating who gets what of your assets but it is better than leaving everything in the hands of the probate court to decide who gets what according to the state’s laws of intestacy (dying without a will).  

For all your estate planning needs in or around Redlands, California, contact The Elder & Disability Law Firm, APC. The firm’s estate planning attorney can help you do a comprehensive review of your assets and create the legal documents needed to make a seamless transfer, even if it’s a deathbed or emergency last-minute will.   

The Elder & Disability Law Firm, APC, proudly serves clients in neighboring communities such as Riverside, Palm Springs, and Rancho Cucamonga, California. 

Understanding Wills in California 

When you create a will in California, you are known as the testator. A testator must meet specific requirements in order to authorize a legally binding last will and testament. You must be at least 18 years of age or older. Also, you must be of sound mind and memory, which means to:   

  • understand what it means to make a will,  

  • understand the nature of your property and your relationships with others, 

  • make your will freely and voluntarily without being unduly influenced by others; and,  

  • not be suffering from any mental disorder.

The document must be in writing, either done by hand or with the assistance of computer software -- no oral wills allowed. A will cannot be a digital document or a PDF. It must also be witnessed by two persons who are not named in your will. They must sign and date the document at the same time as you do. Wills in California do not need to be notarized.   

Holographic Wills 

A handwritten will is also often called a holographic will, but it must be in your own handwriting. Holographic wills must meet the age and competency requirements of any other will, and their acceptance is covered by Section 6111 of the California Probate Code.  

According to the Code, the will must have been clearly created by the testator in their own handwriting. The signature must be verifiable, but no witnesses are required, and there is no requirement for dating.   

However, as you can imagine, a handwritten will with no date and no witnesses can be open to challenge not only by beneficiaries but by the court itself. Another problem with a holographic will is the imprecise language, unclear instructions, and difficulty showing the testator was of sound mind and memory.   

Witnesses and dating should be a large consideration for a holographic will to prevent challenges. Remember, holographic does not mean oral but written in your own hand. Oral wills are not accepted in California. 

Benefits of Creating a Written Will 

Clearly, the safest path to having your last will and testament achieve your goals is to follow the written/witnessed format before your deathbed. If you don't, it can complicate other people’s acceptance of what you’ve done based on mental capacity and/or undue influence.  

In situations where it’s necessary to testify to a last-minute will, it is still advisable to do so with the guidance and assistance of an experienced estate planning attorney. If nothing else, the attorney can vouch for the validity of the document, sound mind – and in the absence of undue influence – when doing so. 

Seek Trusted Legal Counsel 

You can never be too young (at least 18, anyway) or too old to create a will, but you can be too late. That’s why it’s essential to get a comprehensive review and will-creation process before it does reach the point of a deathbed will. A well-crafted and legally binding last will and testament is a sure route to taking care of your loved ones when you’re gone.  

In the Redlands, California, and surrounding areas, rely on the expertise and knowledge of those at The Elder & Disability Law Firm, APC. Every legal age is welcomed with open arms to begin the estate planning process – or to carry out periodic reviews and updates. Reach out today.