A will is an important legal document used to distribute your property, appoint a guardian to care for minor children, and manage your estate after you die. But what do you need to know about making a will in California? We have the answers to your FAQs.
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What If I Die Without a Will in California?
If you do not make a will, you are “intestate,” and the California probate court follows state intestacy laws. You may not like the result. For example, if you are single with no children, your estate goes to your surviving parent or parents. Therefore, if you have a committed relationship with your partner but are not married or have a registered domestic partnership, your partner inherits nothing.
What Does a Will Do?
A will sets forth your wishes for your estate when you die. When making a last will and testament, you can do the following:
- Name a personal representative or executor, a fiduciary responsible for locating your assets, submitting the will to the probate court, handling your estate and filing tax returns, and carrying out your wishes
- Identify and give away your personal property and real property (real estate) to those you want to inherit (your beneficiaries)
- Name guardians for minor children
- Name caregivers for your pets and set aside funds to care for their needs
- Makie charitable donations
A will provides peace of mind for your family members and loved ones. And because you make these decisions, a probate court doesn’t have to, which saves time and money by speeding up the probate process.
What Doesn’t a Will Do?
You have certain assets that transfer outside your will, such as transfer-on-death bank accounts, retirement accounts or IRAs, and life insurance policies.
Examples of these types of accounts and policies are:
- Investment and bank accounts
- Retirement accounts, IRAs, and pensions
- Life insurance policies and annuities
To transfer those assets, name beneficiaries and backup beneficiaries on those accounts. Check that all beneficiary designations on your accounts and policies are up to date.
Who Can Make a Will in California?
The person making a will, called the “testator,” must be an adult and have the mental capacity to make a will. California law has a few rules for testators:
Age: A person must be 18 or older to make a will in California.
Sound Mind: The testator doesn’t suffer from a mental health disorder that includes hallucinations or delusions. Additionally, they must understand the following:
- They are making a will
- What property they own
- Who may be affected by their will, such as children, spouses, and parents
If there are concerns about the testator’s mental capacity, it is best to seek legal advice from an estate planning attorney.
Does California Have a Statutory Will?
Yes, California has a statutory will in §6240 of the California Probate Code. However, you do not have to use the statutory form as it is quite limited in how you distribute your property, and only the testator can sign it for validity. There are better options for a California will: either create your own will customized to your needs or hire an estate planning attorney. Many people use online will drafting resources such as FindLaw Legal Forms and Services to make a California will.
What Types of Wills Does California Accept?
There are different ways to make a will. It is a good idea to understand the following different will types and if California accepts them:
- Handwritten Will: A handwritten will (also called “holographic will”) is acceptable if the signature and material provisions are written in the testator’s handwriting. The will does not need witnesses, but often handwritten wills are subject to challenges in probate court due to their suspicious nature.
- Oral Will: California does not accept oral or spoken wills, only written wills.
- Electronic Will: An electronic will is a will that is signed, witnessed, or notarized by electronic means such as audio-visual technology. California does not recognize electronic wills.
Your will must be in an acceptable format to be valid in California.
Can I Make My Own Will in California?
Yes. You can draft your own will in California. If you know what property you own and who you want to give it to, you do not need an attorney to create the document. Many people who prefer doing it themselves use an online will drafting service, such as FindLaw Legal Forms & Services. The benefit is that they can customize it for their needs and update it when they want. Creating a new will is easier than amending or adding a codicil to the original will.
How Do I Make My Will Valid in California?
To make your will legally binding, follow California’s execution requirements for a will, namely your signature and witnesses.
- Signature: The testator signs the will or directs someone to sign for them in their presence.
- Witnesses: California requires at least two witnesses to a will. The witnesses should be present at the same time and see the testator sign their will or have the testator acknowledge that it is the testator’s signature on the will. The witness must also know they are signing as witnesses on the testator’s will. Avoid using interested witnesses when possible. An interested witness is a witness who is also a beneficiary under the will or in the testator’s estate. An interested witness will not invalidate your will. However, if there are not at least two other disinterested witnesses, California presumes the property given to the interested witness was a result of undue influence, fraud, or duress. The beneficiary (interested witness) then must prove in court that the gift is legitimate. So, it is best to use disinterested witnesses for your will.
- Notary: There is no requirement to have a notary public attest your will to make it valid. However, it may be helpful to use an attestation clause or self-proving affidavit, which requires a notary’s signature.
- Self-Proving Affidavit: California allows you to add an attestation clause to your will to make it self-proving. An attestation clause is a statement your witnesses sign when you execute your will. The witnesses declare they saw you sign the will, or you acknowledged your signature on the will and that you knew you were signing your will. You do need a notary to sign the affidavit. However, the benefit of this clause is that your will becomes self-proving and speeds up probate. The probate court does not need proof of your signature, and your witnesses don’t have to testify that you signed the will.
Can I Disinherit My Spouse in California?
California is a community property state. You cannot disinherit your spouse from their share of your community property. However, you can exclude them from your share of community property and any separate property you own.
Can I Disinherit My Children in California?
You can disinherit your adult children in your will. However, California state law allows any omitted children to inherit an intestate share, meaning what they would receive if you died without a will.
What Estate Planning Documents Should I Have in California?
A will is a critical legal document after your death. However, there are other estate planning documents to help you during your life to make a complete estate plan.
- Power of Attorney. A power of attorney lets you name someone as your agent to manage your financial life when you cannot. For example, to help you during an incapacity or even for convenience if you travel frequently. They can pay bills, provide for your family, and handle tax matters. You decide what powers to give your agent and when their authority begins and ends.
- Health Care Directive. A living will or advance health care directive allows you to give instructions for your end-of-life care and treatment, including life-prolonging measures you want or don’t want. You can also name a health care agent in your living will. Your health care agent is someone you trust to access your medical information and make health care decisions when you can’t speak for yourself. It is important to have a living will so your loved ones don’t have to wrestle with these difficult decisions.
Fortunately, writing a will and doing your California estate planning is relatively easy. You can use online estate planning templates to create a valid will.