Every year, people move to and from the great State of California. For those people who move to California from another state and who had a will drafted while living in another state, does California law require them to draft a new will by a California attorney? The answer to this question is that California law will not necessarily require them to draft a new will while living in California; however, it is certainly a good idea to have the out-of-state will reviewed by a California attorney. It some cases, it may be better to sign a new will drafted by a California attorney revoking the out-of-state will. Here are some reasons why.
California has a very simple rule which largely recognizes the validity of an out-of-state will. The specific rule is California Probate Code § 6113 which basically states that an out-of-state will is valid in California if it meets California’s requirements for creating a will.
So, at minimum, if you have an out-of-state will and you want to be certain that it is valid in California, have a California attorney review your out-of-state will to determine if it meets California’s requirements for will creation. It should not cost you very much to have a California attorney review your will to make sure it complies with California law.
For those of you who do not want to have a California attorney review your out-of-state will, for whatever reason, all is not lost regarding your out-of-state will. Just know that upon your death, you are potentially making it more difficult on the executor named in the will and potentially on your heirs. The reason why is that should your out-of-state will not conform to California’s requirements for creating a will, under the same probate code noted above, the will can still be valid if it is established that the out-of-state will complied with the law at the time it was originally signed and place, meaning the other state, in which it was originally signed. In order to prove this, your executor would likely need to track down the out-of-state attorney that drafted the will and obtain a declaration from them that the will met the law of the state at the time and place it was signed. You can see the issue with this. What if, at the time of your death, the out-of-state attorney has also died or retired to Brazil and is unreachable or the out-of-state law firm has gone out of business and records cannot be located in order to make such a declaration? You can see that this is a recipe for disaster.
Even if your executor is able to obtain a declaration from the out-of-state attorney who drafted your will, the executor then has to work through the California Probate Court process of proving the validity of the will at the petition for probate of your estate. Meaning, this makes yet another step that the executor of your will has to deal with to probate your estate in the already complicated and time consuming probate process.
In summary, although California has a very simple rule which largely recognizes the validity of an out-of-state will, it is a good idea to have the out-of-state will reviewed by a California attorney. In some cases, it is better to sign a new will drafted by a California attorney revoking the out-of-state will. Anyone dealing with the above issues should contact the Chilina Law Firm or another law firm focusing on estate planning for legal advice.
Authored by Greg Chilina and Co-Authored by Karen Chilina
Chilina Law Firm, a Professional Corporation, is a full-service estate planning, probate, trust administration, business law, and real property law firm that provides a wide-range of advising, transactional, and litigation services to its clients from its office located in Atascadero, California. The firm’s attorneys represent individuals and business entities in an assortment of transactional and litigation matters involving estate planning (including trusts, wills, powers of attorney, and medical directives), probate, trust administration, as well as general business law, contracts, corporate governance, land use, and real property. Chilina Law can be contacted by telephone at (805) 538-5038 or by email firstname.lastname@example.org visit the Chilina Law Firm atwww.chilinalaw.com. Chilina Law Firm is based in Atascadero, California and serves North San Luis Obispo County communities, including Santa Margarita, Atascadero, Templeton, Paso Robles, and San Miguel.
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