In this episode of Absolute Trust Talk, host Kirsten Howe and associate attorney Jessica Colbert continue their deep dive into probate fundamentals by focusing on wills. They clarify what makes a will legally valid, why a handwritten (or “wet ink”) signature is still required, and how witnesses play a key role in safeguarding the document’s authenticity. They also explore the differences between a holographic will and the more formal, witnessed variety. This insightful conversation offers a clearer view of one of the most essential components of the probate process.
Time-stamped Show Notes:
0:00 Introduction
1:24 Jessica defines a will as a written, hand-signed document created by the testator.
2:16 Next, Kirsten and Jessica discuss how a testator who cannot physically sign may use a mark or direct someone else to sign on their behalf.
2:36 Did you know just how important witnesses are in validating a will? Also, in California, an ink signature is still required.
3:14 Finally, Kirsten and Jessica explain holographic wills (fully handwritten) versus standard wills (requiring witnesses).
Transcript:
Hello and welcome to Absolute Trust Talk. I am Kirsten Howe. I’m the managing attorney at Absolute Trust Council, and one of our associates, Jessica Colbert, is with me today. If you’ve watched this podcast before, you’ve seen Jessica several times. We’ve been doing several probates and getting some interesting feedback lately, and we decided we really ought to do a series of short episodes about the fundamentals of probate. Today, this one is our second episode of that series. We did another one a little while back. As I said, this is our second one. Today, we’re going to talk about what a will is. So, the first thing you need for a probate, of course, is a dead person. We are lawyers, not doctors, so we don’t worry much about that. We need a death certificate, and then we’re good to go. But, when doing a probate, we first need a will. And we often do probates where there is no will, and that’s also possible. And I’m sure we’ll do an episode about that someday. But today, we’re just going to talk about a will. Jessica, what is a will?
A will is a document written by the dead person, the decedent, or the person who creates the will is also called the testator. So it’s a written document created by the testator, and it is hand-signed by the testator. You know, everyone seen on movies and TV, it’s typically something that lays out what the person wants to happen to their property upon their death.
And you said hand-signed, so that the law around wills is very old; it doesn’t take into account much in the way of modern technology. And by modern technology, I mean typewriters (laughs), let alone docusign and all those things. The person whose will it is has actually to sign the will with a pen in their hand. Okay, so all you, Gen Z, you’ll have to pick a pen someday.
And related to that, it’s not an email. No, email’s not going to work. Again, you need that wet ink pen in your hand signature. Some states are moving more towards electronic wills. California is not on that route yet, maybe someday, but for now, we need that ink signature. Okay, and I actually worked on a case a little while ago where someone was trying to make the claim that a text message, you know, on the phone, was a will; they didn’t go too far with it.
Okay, now, so what if we have someone who wants to make a will but they can’t sign their name? You know, they may have difficulty holding a pen, or maybe they’ve had a stroke. They just can’t even move their hand or arm. So, if it’s a case where someone can still hold a pen, but maybe it isn’t easy to sign their full name, they can sign by a mark. That is perfectly fine if someone can make an X for their name. If they cannot hold a pen at all, they can still make a will. they can direct someone else to sign for them. So that person has to be directed by the testator, the person making the will to sign their name and also has to do it in the presence of the testator when they sign the name.
Okay, okay. And I think this is a good time to talk about witnesses because that sounds kind of shady, or it has the potential for abuse, is what I would say. And we know, I mean, I think everybody knows that will often have witnesses. We, of course, know because we’re lawyers, but we talk about the role of witnesses.
So, there are typically two witnesses. I’ll talk a little bit about how there are differences; there can be differences in witnesses depending on the type of will. The witnesses are typically there just to make sure that it actually happens. The person creating the will actually did sign it. There isn’t any abuse, you know, someone saying, “Oh, they directed me to sign their name to this will.” The witnesses would be there to authenticate that basically.
There are two different types of wills. The standard will that we use every day requires two witnesses, but there is a different type called a holographic will, which does not require any witnesses. The only requirements are that the testator sign it in their handwriting and that the material provisions, like who the property is going to be, are also in the handwriting, but no witnesses.
Okay, we call that holographic meaning written by the person. So, a completely handwritten will on a piece of paper, test days all by himself, signs it. That is a valid will. But if it’s anything other than that, such as the wills we write for people, we write them in our software, and then they come in and sign them. It’s not handwritten by our client. That’s when we have to have witnesses.
And presumably, well, I guess if it’s handwritten, the testers got the ability to sign his name. – Yeah. That was kind of making a logical leap. And then I pulled back, no, not going do that. Okay, very good. Hopefully, that clears up a little bit about what exactly we’re talking about when we talk about a will. Thanks, Jessica. And thank you all for joining us. We look forward to connecting with you next time.
Resources Related to This Episode:
- Absolute Trust Talk Ep. 160: Celebrity Probate Case Files: O.J. Simpson https://absolutetrustcounsel.com/160-celebrity-probate-case-files-O.-J.-simpson/
- Absolute Trust Talk Ep. 157: Avoiding Probate Hassles: Understanding California’s 2025 Law Change https://absolutetrustcounsel.com/157-avoiding-probate-hassles-understanding-californias-2025-law-change/
- Absolute Trust Talk Ep. 156: Probate Alternatives: Real Estate Affidavits and Succession Petitions Explained https://absolutetrustcounsel.com/156-probate-alternatives-real-estate-affidavits-and-succession-petitions-explained/
- Absolute Trust Talk Ep. 155: Spousal Property Petitions: An Easier Alternative to Probate https://absolutetrustcounsel.com/155-spousal-property-petitions-an-easier-alternative-to-probate/
- Absolute Trust Talk Ep. 154: Unlocking Assets Without Probate: The Benefits of Using a Small Estate Affidavit https://absolutetrustcounsel.com/154-unlocking-assets-without-probate-the-benefits-of-using-a-small-estate-affidavit/
- Absolute Trust Talk Ep. 143 Can You Avoid Probate without a Trust? https://absolutetrustcounsel.com/143-can-you-avoid-probate-without-a-trust/
- A Will is Not Enough – Securing Your Legacy with Estate Planning Life can change in an instant. A will is not enough to be prepared. Get free access to our actionable E-book Guidebook #1 and start protecting your legacy today. https://absolutetrustcounsel.com/guidebooks/
- Learn how to comfortably define gray areas and assess your own unique needs to build a secure future now effortlessly. Check out Guidebook #2, Estate Planning Beyond the Basics, here > https://absolutetrustcounsel.com/guidebooks/
- Get our free introductory guide to the most used estate planning tool, family trusts, and understand how we plan to help protect your family. Guidebook #3: https://absolutetrustcounsel.com/guidebooks/
- Absolute Trust Counsel would love to offer access to our Incapacity Planning resource page: https://AbsoluteTrustCounsel.com/Incapacity-Planning/. We’ve collected our top planning information all in one place so listeners can find videos, guidebooks, blog posts, and a host of information with tips and strategies on implementing, planning, and protecting themselves and their loved ones.
- We’re pleased to provide a library of e-books to address common estate planning questions and concerns in practical, easy-to-understand language. https://AbsoluteTrustCounsel.com/Resources/.
- ASK KIRSTEN: If you’d like Kirsten to answer your question on the air, please email her at Info@AbsoluteTrustCounsel.com.
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