Legal Question in Wills and Trusts in California
Witness, Executor and Beneficiary
Can an individual be a witness, executor (Personal Representative) and beneficiary for someone's Last Will and Testament?
If not, what are the limits (i.e. only one of the above)?
1 Answer from Attorneys
Re: Witness, Executor and Beneficiary
You can not be both a witness and a beneficiary. Witnesses must be "disinterested".
From the CA Probate Code:
6112. (a) Any person generally competent to be a witness may act as a witness to a will.
(b) A will or any provision thereof is not invalid because the will is signed by an interested witness.
(c) Unless there are at least two other subscribing witnesses to the will who are disinterested witnesses, the fact that the will
makes a devise to a subscribing witness creates a presumption that the witness procured the devise by duress, menace, fraud, or undue
influence. This presumption is a presumption affecting the burden of proof. This presumption does not apply where the witness is a person to whom the devise is made solely in a fiduciary capacity.
(d) If a devise made by the will to an interested witness fails because the presumption established by subdivision (c) applies to the
devise and the witness fails to rebut the presumption, the interested witness shall take such proportion of the devise made to the witness in the will as does not exceed the share of the estate which would be distributed to the witness if the will were not established. Nothing in this subdivision affects the law that applies where it is established that the witness procured a devise by duress, menace, fraud, or undue influence.
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