Q.  Before relocating to California, my wife and I lived in Ohio where we signed wills. Are they now valid in California?

A.  If they were properly prepared and signed under the laws of Ohio, the short answer is “yes”. But, it would still be wise to have them reviewed — and perhaps revised — by a California lawyer. Even though prepared in Ohio, they might be interpreted under the laws of California, perhaps with unanticipated results.  Here are some examples:

Bequest to Caregiver: Under California law, a bequest to a person who is a caregiver, or who is acting as a fiduciary to the will-maker, is generally presumed to be invalid unless an independent attorney has evaluated the planned bequest, and issued a Certificate of Independent Review affirming that the bequest was made voluntarily and not under duress.  Otherwise, the bequest will generally fail.  That may not be the same rule in the state where the will was originally prepared.  So, even though an out-of-state will may be deemed valid in other respects, it is possible that any bequest to a caregiver or a fiduciary may fail if the will is offered for probate in California.  Presumably, such a result was not what the will-maker intended.

Witness Authentication: Generally speaking, before a will can be admitted to probate in most states, two witnesses must have signed a sworn statement reciting that they were present, observed the will-maker sign the will, and affirm that he or she was in possession of his mental faculties and not acting under duress.  In some states, and I believe Ohio is one, this sworn statement is typically not included in  the original will.  Instead, when the testator later dies and the will is offered for probate, the witnesses must then be located and their sworn statements secured before the will can be offered for probate. Sometimes, they must appear in court and give testimony about the signing of the will. If the witnesses cannot then be located, or if they have predeceased the testator, the matter of proving the validity of the will becomes problematic.

California law avoids this problem by permitting the original will, itself, to contain the sworn statement immediately above the witness’ signatures.  This is called a “self-proving” will, and allows the will to be admitted to probate without any additional evidence. This avoids the need to locate the witnesses and secure their sworn statements, sometimes years later.  That sworn statement usually reads something like the following: “Each of us declares, under penalty of perjury, that the foregoing recitals [about the signing of the will] are true and correct”.

Real Property:  If the will disposes of real property in another state, the will should comply with the laws of both states in order to avoid problems. I would advise the same if the realty is held in a Living Trust.

The question as to which state’s laws govern any particular legal issue concerning  a will may vary.  It is therefore wise to have your Ohio wills reviewed, and perhaps revised, if you have relocated to California.  An ounce of prevention is worth a pound of cure.