What Law Governs a Will That Crosses State Lines?
Retirees move to California from other states all the time, often with a will they signed decades earlier somewhere else — Texas, Ohio, New York — under that state’s rules. Does California honor it? And if someone dies without a will while owning a house in Nevada and a bank account in California, whose intestacy law controls each asset?
California answers these with two entirely separate inquiries. The first is execution formalities — was the will properly signed and witnessed? The second is substantive disposition — does the will’s gift of a specific asset actually pass title, and under whose law? Mixing these two questions up is the single most common error in this area, and California Bar Exam essays test it relentlessly.
Execution Formalities: California’s Generous “Three Laws” Rule
Cal. Probate Code § 6113 is deliberately testator-friendly. A will is validly executed — and therefore admissible to probate in California — if it complies with the formalities of any one of three possible laws:
- California law, as either an attested (formal, witnessed) will or a holographic will;
- The law of the place where the will was executed, as of the time of execution; or
- The law of the testator’s domicile at the time of execution, or at death (regardless of where the will was physically signed).
The testator gets the benefit of whichever of the three is most favorable. A will that fails under the law of the state where it was signed can still be perfectly valid in California if it satisfies California’s own requirements, or the requirements of the testator’s domicile.
Substantive Disposition: The Situs/Domicile Split
Execution validity is only half the story. Even a properly executed will is subject to a completely separate rule for whether a specific gift of a specific asset actually works — and this rule applies to both testate wills and intestate succession:
- Real property — governed by the law of the state where the land is located (lex situs). A California will’s gift of out-of-state land only takes effect to the extent that state’s own law recognizes it.
- Personal property — governed by the law of the testator’s domicile at death, regardless of where the property is physically located.
| Question | Governing Rule | Applies To |
|---|---|---|
| Was the will validly signed and witnessed? | § 6113’s three-law rule (CA, place of execution, or domicile) | Execution formalities only |
| Does a gift of real property actually pass title? | Law of the state where the land sits (lex situs) | Testate AND intestate |
| Does a gift of personal property actually pass title? | Law of testator’s domicile at death | Testate AND intestate |
Worked Example: The Snowbird’s Will
Testator Harold executed an attested (witnessed) will in Ohio in 1998, with two witnesses — which satisfied Ohio law at the time. Harold later moved to California and lived there until his death in 2026. At death, Harold owned a bank account and personal belongings in California, plus a vacation cabin in Oregon.
Step one — execution. Was Harold’s will validly executed? Under § 6113, California checks three laws: Ohio’s law at the time of execution (satisfied — two witnesses met Ohio’s requirement), California’s own current formalities (also satisfied, since California requires two witnesses too), and Harold’s domicile at execution or death. Any one of these being satisfied is enough. Harold’s will is valid for probate in California.
Step two — substantive disposition. Even though the will is validly executed, each asset is governed separately. Harold’s California bank account and personal belongings pass under the will’s terms as construed under California law (his domicile at death). The Oregon cabin, however, is governed by Oregon’s law on whether and how that specific real property disposition takes effect — Oregon’s substantive property law controls the cabin, regardless of what California law would otherwise say.
Worked Example: Holographic Will From a Non-Holographic State
Testator Priya handwrites and signs a will while living in Texas — a state that does not recognize holographic (unwitnessed, handwritten) wills. Priya later moves to California and dies there without ever re-executing the document.
Under § 6113, California checks all three possible laws. Texas law (place of execution) doesn’t validate it, because Texas doesn’t allow holographic wills. But California law does — a handwritten, signed document with testamentary intent satisfies California’s own holographic will statute. Because § 6113 only requires satisfying any one of the three laws, Priya’s will is valid and admissible to probate in California.
Intestacy Follows the Same Split
The situs/domicile split isn’t unique to testate estates — it’s the general rule, and it governs intestate succession the same way. A decedent domiciled in California who dies without a will, owning a bank account in Illinois and a house in Arizona, has the Illinois bank account distributed under California intestacy law (the domicile rule for personal property, wherever it happens to sit), while the Arizona house is distributed under Arizona’s own intestacy law (lex situs). Each state applies its own intestacy rules to the property within its jurisdiction.
The Presumption Against Intestacy
One more interpretive principle rounds out this area: California courts presume an instrument was intended to operate as a will and interpret ambiguous language to give the will effect wherever reasonably possible, rather than defaulting to intestacy. On a close call about whether formalities were met, this presumption tips the scale toward validity.
Frequently Asked Questions
Is a will I signed in another state automatically valid in California?
Often yes. Cal. Probate Code § 6113 validates the will’s execution if it satisfies California law, the law of the place where it was executed, or the law of your domicile at execution or death — you only need to satisfy one of the three.
Does § 6113 mean California law controls all my property, no matter where it’s located?
No. Section 6113 only validates how the will was signed and witnessed. Actual disposition of a specific asset still follows the situs/domicile split: real property by the law of its location, personal property by the law of your domicile at death.
If I die without a will owning property in two states, whose intestacy law applies?
It depends on the asset. Personal property follows your domicile at death. Real property follows the law of the state where it’s physically located, even if that’s a different state than your domicile.
Key Takeaways
- Cal. Probate Code § 6113 validates a will’s execution if it satisfies any one of three laws: California, the place of execution, or the testator’s domicile.
- Execution validity and substantive disposition are two separate questions — passing the first doesn’t answer the second.
- Real property follows the law of its location (lex situs); personal property follows the law of the testator’s domicile at death.
- The situs/domicile split applies to both testate and intestate transfers — it isn’t intestacy-specific.
- California courts apply a presumption against intestacy, interpreting close calls in favor of giving the will effect.
This article is educational and is not legal advice. Consult a licensed California attorney about your situation.
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